» IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fC.G.V WRIT PETITION f227') N0. i^^^ OF 2010 PETITIONER DEFENDANTNO.l ^<' .^ ^^ ^^^- . ^y" RESPONDENTS PLAINTIFFS Ramsagar Son of Late Budhram, aged about 54 years, Occupation Agriculture, Resident of Village Krishnapur, Police Station and Tahsil Surajpur, District Surguja (C.G.). VERSUS Leelawati Wife of Late Nanhu Ram, aged about 44 years. Uma D/o Late Nanhu Ram, aged about 29 years, Wife of Balsay, Resident of Village Latori (Bhandarpara), Police Station Jainagar, Tahsil Surajpur, District Surguja (C.G.). Meena D/o Late Nanhu Ram, aged about 27 years. Beena Gupta Wife of Dashrath Gupta, aged about 24 years D/o Late Nanhu Ram, Resident of Chandni Chowk, Near Mandir, Village Ramanujnagar, Tahsil Surajpur, District Surguja (C.G.). Reena D/o Late Nanhu Ram, aged about 23 years. Rahul Son of Late Nanhu Ram, aged about 19 years. i^^^^s ^ DEFENDANTS 7, 8. Respondent No.l, 3, 5 & 6 are residents of Village Raghuveerpur, Post Kudeli, Police Station Baikunthpur, District Koriya (C.G.). The Sub Divisional Officer (Revenue), Surajpur, Surguja (C.G.). District The Sub Divisional Officer, Water Resources Division, Surajpur, District Surguja (C.G.). State of Chhattisgarh, through the Collector Surguja, Ambikapur, District Surguja (C.G.). WRIT PETITION UNDER AR.TICLE 227 OF THE CONSTITUTION OF INDJA -rM—^f^f /^ n i r-r^ EiH'MU^ffiUBU.^iia^a^gS^^ mGH COURT OF CHHATTISGARH AT BILASPUR 8.B: Hon'ble Shri Prashant Kumar Mishra PETmONER RESPONDENTS Writ Petition f227) No. 1647/2010 : Ramsagar Versus : Leelawati and ofliers Aooearance: Shri Ashok Kumar Shukla, counsel for the petitioner. Shri D.N. Prajapati, counsel for respondents No.l, 2 and 4. None for respondents No.3,5 and 6 though served. Shri Sanjeev Agrawal, Panel Lawyer for respondents No.7 and 9. Smt. Hamida Siddiqui, counsel for respondent No.8. WMT PETITION UNDER ARTICLE 227 OF THE coNSTrrm'ioN OF INDIA ORALORDER (26.10.2010) Heard finally with the consent ofthe parries. (2) The petitionens have challenged the appellate order as well as the order passed by the teial court/MJC court rejecting his application under Order 9 Rule 13 ofCPC for setting aside the ex-partejudgment and decree dated 1/07/2005 passed in Civil Suit No.l l-A/2004. (3) Shri Ashok Kumar Shukla, leamed counsel for the petitioner would submit that he was never served with the notice in civil suit and tiiat the order proceeding ex-parte as well as Ihe ex-parte decree 1 are illegal and coritraiy to the provisions oflaw. -2- \p 33 (4) Shri D.N. Prajapati, leamed counsel appearing for respondents No. 1, 2 and 4 would submit that both the courts below have concurrently found that the petitioner was avoiding service of notice and repeated effort by the court to serve notice upon the petitioner yielded no result and that on each occasion the petitioner would remain absent from the house and instead his son would be there to refiise notice, therefore the notice was pasted on the house belonging to the petitioner and tiius there is no illegality committed by the courts below while refiising the petitionere prayer for setting aside ex-parte. (5) Annexure P-7 is the copy ofthe notice issued by the trial court for hearing ofthe suit on 22/03/2004. In this notiee it is endorsed that the petitioner has gone to Surajpur and his son was shown tiie notice upon which he refused to accept service ofthe notice. Annexure P-8 is another process issued for hearing on 14/05/2004. In this notice it is mentioned that in the absence ofpetitioner the notice was pasted on the house. Annexure P-9 is a notice for hearing on 19/07/2004. It is endorsed on this notice that petitioner is not available, but his son is available who refiises to accefst the notice. This document is witaessed by one Shobhitram. (6) In none ofthe process issued by the court tfie name or age of the petitioner's son is mentioned. It is strange as to how the trial court recorded the finding in para 11 of the order Annxure P-5 that Ifae ' petitioner's son Raju aged 19 years refiised to accept notice. 3 Annexure P-9 is witoessed by one ShobhitraiUL, whereas as per certificate issued by concemed Gram Panchayat the said Shobhitram died on 26/09/2001, whereas the endorsement made on Annexure P-9 was made on 18/07/2004. Thus, the endorssment made by the process server regarding sCTvice of notice on the petitioner's son is not in accordance with law as neither the name nor the age of fhe son is mentioned. It is not clear that whether Ihe son was an adult member ofthe house or that any other adult member was not available. (7) Regarding the validity of the service of notice by affixture /pasting the provisions contained under Order 5 Rule 17 is to be seen. Under the said provisions the afGxture is to be made when the defendant or his agent refuses to sign the acknowledgemenl, or defendant cannot be found and there is no likelihood of his being found and Ifaere is no agent empowered to accept service ofsummons on his behal^ nor any other person onwhom serviee can be made. (8) In the present case, the endorsement by Ihe process server does not state that any adult member ofthe family has refased or that tiie son available was major and has refused to accept the notice. On each occasion, the son was available in the house and there is no mention that any other adult family member was available or not. (9) Thus, in view of the provisions contained under Order 5 Rule 17 of CPC the service of notice by afBxture is also in not in accordance and tfie prerequisite as contained under Order 5 Rule 17 4- fcs ^^'.^ of CPC before taking service of notice by affixture as complete, has not been complied with. (10) Moreover, the examination of process server is necessary under Rule 19 ofOrder 5 ofCPC in a case where the summons has been retumed under Rule 17 thereof. In the present case, the serving officer has not been examined and for this reason also there is violation ofRule 19 ofOrder 5 ofCPC. (11) For the foregoing reasons, the instant writ petition under article 227 of the Constitution of India succeeds. If the impugned order is not set aside, it would occasion failure of justiee as the petitioner would be suffering a decree without giving opportunity of hearing. The present is a case warranting interference and exercise of jurisdiction under article 227 ofthe Constitution ofhidia. (12) In the result, the impugned orders are set aside. Consequently, the ex-parte decree is also set aside. (13) No order as to cost, Sd//- Prashant Kumar Mishra Judge 'r