1 S.B. Civil Miscellaneous Appeal No.2247 of 2006. Shiv Kumar son of Shri Mangi Lal VERSUS Upendra Nath son of Shri Ladu Nath IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Miscellaneous Appeal No.2247 of 2006. Shiv Kumar son of Shri Mangi Lal VERSUS Upendra Nath son of Shri Ladu Nath Date of Judgment :::: 12th January, 2010. Hon'ble Mr. Justice Dalip Singh Mr. Rajendra Prasad, Counsel for the Defendant-appellant Mr. J.P. Gupta, Counsel for the Plaintiff-Respondent *** By the Court : Heard learned counsel for the parties. This is a miscellaneous appeal, under Order 43 Rule 1 (d) of the Code of Civil Procedure, 1908, against the order dated 23.03.2006 passed by the learned Additional District & Sessions Judge, Beawar (Ajmer), in miscellaneous case No.45 of 2004, by which the application submitted by the defendant-appellant under Order 9 Rule 13, C.P.C. for setting aside the ex-parte decree dated 31.03.1999 has been dismissed. 2 S.B. Civil Miscellaneous Appeal No.2247 of 2006. Shiv Kumar son of Shri Mangi Lal VERSUS Upendra Nath son of Shri Ladu Nath Facts, in brief, are that the plaintiff-respondent instituted a suit for specific performance of the agreement for sale in respect of immovable property situated in Beawar (Ajmer) against the defendant-appellant. An ex-parte decree came to be passed against the defendant-appellant on 31.03.1999 for specific performance and for executing the registered sale-deed within a period of one month, on his failure to do so, right was given to the plaintiff to get the sale- deed executed. The plaintiff-respondent gave a notice allegedly to the defendant-appellant by registered post stating therein that he has failed to execute the registered sale-deed in terms of the decree dated 31.03.1999 within a month and, therefore, he is giving this notice for execution of the sale-deed. The aforesaid notice was alleged to have been served upon the defendant-appellant, but a further notice under the certificate of posting (U.P.C.) was again sent, which too was alleged to have been served upon the defendant-appellant, but the defendant-appellant did not execute the sale-deed. Thereafter, the plaintiff decree-holder filed an application for execution of the decree dated 31.03.1999. It is contended by the learned counsel that in the execution proceedings also a notice under Order 21 Rule 34, 3 S.B. Civil Miscellaneous Appeal No.2247 of 2006. Shiv Kumar son of Shri Mangi Lal VERSUS Upendra Nath son of Shri Ladu Nath C.P.C. was issued by the learned Executing Court on which also a report of refusal was received. Thereafter, the present application for setting aside the ex-parte decree dated 31.03.1999 was filed by the defendant on 05.03.2004. To the aforesaid application, a reply was submitted by the respondent-plaintiff on 24.08.2004 and after considering the application, the reply and the material placed before the learned Court below, the learned Additional District Judge dismissed the application by the impugned order dated 23.03.2006, dismissing the application under Order 9 Rule 13, C.P.C. The submission of the learned counsel for the defendant-appellant is that the learned trial Court recorded a finding of sufficient service on the basis of the alleged refusal, without taking into consideration the provisions of Order 5 Rule 17, C.P.C. To appreciate the above contentions, it is necessary to take into consideration the certain facts. In the instant case, summons were issued in the suit to the defendant on 05.11.1998 on which a report of refusal to accept the summons was received. The process-server reported that the wife of the defendant was present and informed that the defendant, who is 4 S.B. Civil Miscellaneous Appeal No.2247 of 2006. Shiv Kumar son of Shri Mangi Lal VERSUS Upendra Nath son of Shri Ladu Nath the husband, has gone away for livelihood about six-months ago and she does not known when he will come back. After the aforesaid report was made by the process- server, the Court again on 11.11.1998 directed for issuance of fresh summons to the defendant for 18.11.1998. Summons sent by the said appellant were also received unserved with similar report. The Court again directed for issuance of fresh summons for 24.11.1998. On 24.11.1998 the counsel for the plaintiff applied to the Court and made a prayer that the process-server may be directed to effect service by substituted service by affixation of the notice on the house of the defendant-appellant. The aforesaid prayer was allowed by the learned trial Court after being satisfied and summons were ordered to be issued for appearance of the defendant before the learned trial Court on 30.11.1998 and if necessary to affix the summons on the conspicuous place of the house of the defendant. The order-sheet dated 24.11.1998 reads as follows : 24.11.98 "वकȧल वादȣ ौी एम जी गग[,उपǔःथत। ूितवादȣ अनुपǔःथत। वकȧल वादȣ कȧ ूाथ[ना है Ǒक ूितवादȣ के नहȣं िमलने पर उसके सàमÛस कȧ तामील जयȶ चःपानगी करने का आदेश Ǒदया जावे। वकȧल वादȣ को सुना गया व वकȧल वादȣ कȧ ूाथ[ना ःवीकार कȧ जाती है। अत: तलवाना सàमÛस फाम[ ूितवादȣ पेश करने पर ूितवादȣ का सàमन इस लेख के 5 S.B. Civil Miscellaneous Appeal No.2247 of 2006. Shiv Kumar son of Shri Mangi Lal VERSUS Upendra Nath son of Shri Ladu Nath साथ जारȣ Ǒकया जावे Ǒक ूितवादȣ नहȣं िमले या इÛकार करने पर ूित का सàमन जयȶ चःपानगी तामील कराया जावे। िमसल Ǒद. 30.11.98 को संबंिधत मुत. िमसल के साथ वाःते तामील सàमÛस पेश हो। आज अिभभाषक संघ, Þयावर कȧ ओर से काय[ ःथिगत रखने कȧ ूाथ[ना कȧ गई है।'' After the aforesaid orders were issued, summons were sent on the address of the defendant and on which the following report has been made by the process-server. महोदय जी, मजकूरȣ हरȣ िसंह का बयान है Ǒक मɇने िलखे पते पर िशव कुमार को तलाश Ǒकया वह मौके पर मौजूद नहȣं िमला उसके घर मɅ बताया जाता है Ǒक वह काफȧ समय से घर मɅ नहȣं आता है। लापता बताया जाता है। आस पास पूछने पर भी बताया जाता है Ǒक वह इधर हȣ है मगर सàमन कȧ तामील से बचने के िलए उãटा सीधा जवाब देते रहते हɇ। बाद सàमन कȧ पुँत पर Ûयायालय Ʈारा आदेश है Ǒक िशव कुमार के नहȣं िमलने पर सàमन कȧ तामील चःपानगी Ʈारा करायी जावे। सàमन कȧ एक ूित मय नकल िशव कुमार के मकान के अÛदर दरवाजे के पास बाहर दȣवार पर चःपा Ǒकया, मौके पर तहरȣर कराई गई। िलहाजा मौका ǐरपोट[ पेश है। एस डȣ/- हरȣ िसंह सàमन कȧ एक ूित िशव कुमार के मकान पर चःपा 1. लेखराज भाटȣ S/o बःती राम जी भाटȣ कृंणा कॉलोनी, कॉलेज रोड़, Þयावर 2. Ǒदनेश शमा[ S/o ौी माखन चÛद शमा[ कृंणा कॉलोनी, कॉलेज रोड़,Þयावर(अजमेर) 6 S.B. Civil Miscellaneous Appeal No.2247 of 2006. Shiv Kumar son of Shri Mangi Lal VERSUS Upendra Nath son of Shri Ladu Nath Learned counsel for the plaintiff-respondent contended that in the instant case the affixation was made in compliance with Rule 17 of Order 5, C.P.C. Rule 17 of Order 5, C.P.C. reads as follows : 17. Procedure when defendant refuses to accept service, or cannot be found. -- Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.” 7 S.B. Civil Miscellaneous Appeal No.2247 of 2006. Shiv Kumar son of Shri Mangi Lal VERSUS Upendra Nath son of Shri Ladu Nath In the instant case, as has been mentioned above, the plaintiff took care to take the permission of the Court for service by affixation stating the circumstances of the earlier summons being refused by the family members (wife of the defendant) stating therein that the defendant is not present nor disclosing his whereabouts and when he is likely to be come and taking aforesaid circumstances into consideration the learned trial Court permitted while allowing the application of the plaintiff for effecting service by affixation, if necessary vide order-sheet dated 24.11.1998. The report of the process-server on the summons, which were issued for 30.11.1998 to the defendant made by the process-server corroborated the averments made by the plaintiff before the Court on 24.11.1998 and, therefore, the Court having permitted the process-server to affect the service by affixation in the circumstances, which were placed before the Court on 24.11.1998, which stands corroborated by the report of the process-server dated 29.11.1998 made on the summons, no exception on the basis of non-compliance of Rule 17 of Order 5, C.P.C. which was raised by the defendant- appellant can be taken to the manner in which the service was affected in the instant case. The satisfaction of the court was recorded and permission given in advance by the Court was 8 S.B. Civil Miscellaneous Appeal No.2247 of 2006. Shiv Kumar son of Shri Mangi Lal VERSUS Upendra Nath son of Shri Ladu Nath sufficient compliance. There is, therefore, no substance in the aforesaid objection of the learned counsel for the defendant-appellant that the learned trial Court did not take into consideration the provisions of Rule 17 of Order 5, C.P.C. while deciding the prayer of the plaintiff for permitting the service by affixation. Apart from above, the learned trial Court while dismissing the application under Order 9 Rule 13, C.P.C. has given cogent reasons for not allowing the application. The learned trial Court has taken into consideration the averments made by the defendant-appellant in his application filed on 05.07.2004, wherein he stated that he had gone away from Beawar for the last three-years and so there was no question of refusal. The learned trial Court, therefore, taking into consideration the aforesaid averments came to the conclusion that as per the aforesaid averments the defendant-appellant would have gone away from Beawar since 2001, or there about whereas the service in the instant case was affected in 1998 and there is no averment to the effect that at that point of time the defendant was out of Beawar in connection with his livelihood. It may also be noted that the defendant has not filed any affidavit of his wife that no summons were delivered to her and that she refused to accept the same. 9 S.B. Civil Miscellaneous Appeal No.2247 of 2006. Shiv Kumar son of Shri Mangi Lal VERSUS Upendra Nath son of Shri Ladu Nath The learned trial Court has, therefore, rightly rejected the aforesaid contentions of the defendant. In the facts and circumstances, therefore, there is no merit in the application submitted by the defendant-appellant under Order 9 Rule 13, C.P.C. and this miscellaneous appeal is accordingly dismissed. There shall be no order as to costs. (Dalip Singh), J. Ashok/