Civil Revision No. 432 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 432 of 2004 Date of decision: 02.09.2009 Ravi Kumar ....Petitioner Versus Ramji Lal ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Ashok Singla, Advocate, with Mr. Ravish Bansal, Advocate, for the petitioner. Mr. Ashwani Verma, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 26.8.2003, passed by the learned Additional District Judge, Sangrur, vide which the appeal filed by the respondent/defendant against the order passed by the learned trial Court on an application under Order 9 Rule 13 of the Code of Civil Procedure, stands allowed. The petitioner/plaintiff filed a suit for recovery on the basis of pronote and receipt. The defendant/respondent was proceeded ex parte and ex parte decree was passed. The defendant on coming to know about the ex parte decree filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree, on the plea that the defendant/respondent was not served in the case, and that the application Civil Revision No. 432 of 2004 -2- was moved immediately on coming to know about the decree. The application was contested. The learned trial Court dismissed the application by holding, that the defendant/respondent had refused to accept the service and further more, that the defendant/respondent was served by publication in 'Chardi Kala' i.e. by way of substituted service. The learned lower appellate Court accepted the appeal by recording as under: - “After giving a careful thought to the pleadings of the parties and the evidence on record, I find that the learned lower appellate court has erred in not setting aside exparte judgment and decree dated 21.2.2000, for more than one reason. A perusal of the order sheet on the lower court file (CS No. 32/6.2.99 titled Ravi Kumar Vs. Ramji Lal d/o 21.2.2K), order dt. 6.2.1999 (certified copy Ex. A-1), dt. 19.4.1999 (Ex. A-2), dt. 28.7.99 (Ex. A- 3), dt. 30.9.1999 (Ex. A-4), dt. 3.11.1999 (Ex. A-5), dt. 14.12.1999 (Ex. A-6) will all show that the applicant had never been served upon with the summons personally. There are no summons on the lower court file showing the refusal of same by the defendant. Ex. A-1, order dated 6.2.1999 shows that summons of the defendant had been sent returnable on 19.4.1999 which had not been received back and yet on the next date i.e. 19.4.1999, he was ordered to be summoned though RC, which was received back later with the report that the respondent was evading service. He was then ordered to be summoned though publication. In fact, the RC containing summons had been received back with the endorsement that nobody came to receive RC. One wonders as to why should anybody come to the post office to receive the post. The Postman should have Civil Revision No. 432 of 2004 -3- made attempts to contact the addressee for delivering him the RC. Thus, without any report of refusal to receive the summons or RC, substituted service could not be ordered. Then again in the matter of setting aside of an exparte decree, Article 123 to the Schedule attached to the Limitation Act, 1963 prescribes that the period of limitation for filing the application for the purpose is thirty days. Explanation attached to Article 123 says, for the purpose of this article, substituted service under Rule 20 or Order 5 of CPC shall not be deemed to be due service. In view of above said discussions, the court finds that the crux of the matter is that summons were never served upon the applicant during the pendency of the suit. He did not refuse to receive the summons. There is no report of refusal of RC and thus, the order of substituted service passed by the learned lower court was not justified. For aforesaid reasons and for the reason that the decree in question is a money decree involving heavy sums namely Rs.3,00,000/-, the defendant should be given a fair opportunity to contest the suit. Consequently, the CMA is accepted. Lower court order dated 6.1.203 is set aside and exparte judgment and decree dated 21.2.2000 is set aside. The Civil Misc. Appeal is accepted. The parties are directed to appear before the learned lower court for further proceedings on 30.8.2003. Lower court file be sent back. Appeal file be consigned to the record room.” Learned counsel for the petitioner challenged the impugned order, primarily on the ground, that the finding recorded by the learned lower appellate Court, as referred to above, cannot be sustained in law in as much as it was not in dispute that the registered letter sent to the defendant/respondent was on the correct address, therefore, there is Civil Revision No. 432 of 2004 -4- presumption that the letter was served on the defendant/respondent. This plea of the learned counsel for the petitioner cannot be accepted. It is not a case where the registered letter sent on correct address was not received back, so as to draw a presumption of its delivery. There is positive evidence, that the registered letter sent to the defendant/respondent was received back unserved. Therefore, no presumption can be drawn, as contended by the learned counsel for the petitioner. It is next contended by the learned counsel for the petitioner, that in the present case, there was a report by the Postman showing that respondent had not taken the registered cover, therefore, the learned trial Court was right in coming to the conclusion that the defendant/respondent had refused service, or in any case was evading service. The learned trial Court, after satisfying that the defendant was evading service, had ordered service by way of substituted service, therefore, it was not open to the defendant/respondent now to contend, that there was no service effected on him in the suit. This contention of the learned counsel for the petitioner cannot be accepted, as the learned lower appellate Court has rightly held that the Postman had not recorded refusal, rather the report on registered cover was that the defendant/respondent had not come to collect the registered cover. The finding of the learned lower appellate Court, that no service was effected by registered post, cannot be faulted with, nor the contention of the learned counsel for the petitioner can be accepted, as no presumption against the admitted facts can be drawn. The learned counsel for the petitioner, thereafter, contended Civil Revision No. 432 of 2004 -5- that in the present case, substituted service was duly proved. The contention of the learned counsel was, that he had even produced a witness to prove the factum of circulation of newspaper 'Chardi Kala' at Ratia. This contention of the learned counsel for the petitioner also deserves to be rejected. Chardi Kala is a newspaper published in Patiala, and cannot said to have circulation in the remote village. The defendant/respondent is not a resident of Ratia, but of village Allawal, and there was no evidence of circulation of Chardi Kala in the said village.. The learned counsel for the petitioner contends that the newspaper was sent at his address. This plea also cannot be accepted, as the newspaper is Punjabi newspaper, there is no evidence that the respondent is well-versed in Punjabi, to draw presumption of service. Even otherwise once the Court found that service was not proper, then the direction of Court on application of opposite party for substituted service under Order 5 Rule 20 of the Code of Civil Procedure is not proper. Directions for substituted service under Order 5 Rule 20 of the Code of Civil Procedure can be issued only when Court is satisfied “that there is reason to believe that defendant is keeping out of way for the purpose of evading service or that for any other reason the summons cannot be served in the ordinary way”. In the facts of this case, the Court did not and rather could not have any such satisfaction in view of finding of learned appellate Court holding that service was not proper. In view of report, Court was to adopt method for normal service. Civil Revision No. 432 of 2004 -6- It was finally contended by the learned counsel for the petitioner, that the application was hopelessly barred by time, as the period of limitation prescribed is only 30 days from the date of ex parte order, whereas the application was filed on 6.9.2000 i.e. after seven weeks. It was also contended, that the application is barred by limitation even from the date of knowledge. The contention of the learned counsel for the petitioner is, that attachment order was effected on 1.8.2000, and the plea taken by the respondent was that few days after the attachment, he was told by the Patwari that ex parte decree has been passed against him. The application was moved only on 6.9.2000. Learned counsel for the petitioner contended that few days can be taken to be three days, therefore, the application was barred by limitation. This plea is also mis-conceived. Few days cannot be quantified, they can go upto weeks. The learned lower appellate Court, therefore, was fully justified in setting aside the ex parte decree. By way of impugned order, no prejudice has been caused to the plaintiff/petitioner, except that he can get his claim adjudicated on merits. No merit. Dismissed. (Vinod K. Sharma) Judge September 02, 2009 R.S.