IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR .N0. ^ M A N0> OF 2010 INTHEMATTEROF: APPEALANT ^rS-^):"Z^. ^ ^.^,..J^^^^^t^m^ ^^^^^^^^ ^M&ti Lal Bhalekar Age 75 year ^sNil......^^- S/o Late Chaa&n Cast Maharastrian Mahar Business Agriculture, Residence Makan no^ H/178 Birsa Nagar Dist. West Sinh Bhumi, Jamshedpur Oharkhand) ,M VERSUS RESPONDENTS 1. Mrs Kalyani Tiwari Age 60 year W/o Ashok Tiwari Mrs. Vatsala Tiwari Age 32 year W/o Apurva Tiwari ^»9 Both Residence of Bodhpunj Karbala Road Juna Bilaspur (C.G.) 3. StateOfChhattisgarh Through: Collector, Bilaspur (C.G.) APPEAL UNDER QRDER yLIII RULE IfdV OF CODE OF CIYIL PROCEDURE ARISING OUT OF ORDER DATED 11^/2010 PASSED BY THE COURT 0^1 ADDmONAL JUDGE BILASPUR IN CIVIL MJC N0 56/2009 MOTILAL BHALEKAR VS KALYANI TIWARI AND 2 OTHERS MisceUaneous ADpeal Court fees affixed for Rs 15/- Contd.2 HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal No.43 of 2010 Moti Lal Bhalekar versus Mrs. Kalyani Tiwari and others ORDER Postfor 30-9-2010 Sd/- prashantKumarMishra Judge .^"' ¥'^ ';-lfe.,i 1 i ""II i HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal No.43 of 2010 Appellant Respondents versus Moti Lal Bhalekar Mrs. Kalyani Tiwari and others Present: Shri Mukesh Sharma, counsel for the appellant. Shri P.P. Sahu, Advocate with Shri Anil Pandey, counsel for respondents No.1 and 2. Shri Sanjeev Agrawal, Panel Lawyer for the State/respondent No.3. Miscellaneous Appeal under Order 43 Rule 1 (d) of the Codeof Civil Procedure ORDER (Passed on ^O^September, 2010) This is defendant's appeal under Order 43 Rule 1(d) of the Code of Civil Procedure, 1908 (henceforth 'the Code') challfenging the order passed by the trial Court/M.J.C. Court dismissing his application under Order 9 Rule 13 of the Code for setting aside the ex parte judgment and decree dated 21-7-2009. 2. The plaintiffs/respondents No.1 and 2 preferred a suit for specific performance of contract with respect to land bearing Khasra No. 1283/1 area 0.36 acre situated at Village Tifra, Tahsil and District Bilaspur. The suit was filed on 9-4-2009 and was decreed ex parte on 21-7-2009. ,3. In his application under Order 9 Rule 13 of the Code, the 'appellanVdefendant stated that the suit was instituted by the plaintiffs against him by showing his address and thereafter through his power of attorney holder Khalid Khan. The summons was reported to be refused by the wife of attorney-holder, which was illegally treated as valid service. Even the address of his attorney- holder was not correct and in any case, summons was never served on the defendant/appellant's address shown in the plaint. He became aware of the ex parte judgment and decree on 22-10-2009 when the execution notice was served upon him. The application under Order 9 Rule 13 of the Code was supported with affidavits of the attorney-holder as well as the defendant himself. 4. The plaintiffs/respondents No.1 and 2, in their reply, stated that summons was duly served on the defendant/appellant's attorney-holder after recording refusal by the wife of the attorney- holder. 5. The Court below has dismissed the application for setting aside the ex parte decree after holding that summons was rightly treated to be served on the defendanVappellant through his attorney-holder since the attorney-holder's wife refused to accept the notice. 6. Learned counsel for the appellant has argued that the Court below has committed a serious error of law by treating the service of summons as complete. He would submit that the defendant/appellant has never received any notice of the suit. 7. On the other hand, learned counsel for respondents No.1 and 2/plaintiffs has argued that from the conduct of the ^'•5 ^ defendanVappellant, his attorney-holder and the background in which the litigation between the parties has been going on including the previous litigation, it would clearly appear that the defendanVappellant was aware of the litigation and, therefore, the Court below has rightly treated the service on the attorney-holder of the defendanVappellant to be a valid service on the defendanVappellant. 8. I have heard learned counsel for theparties at length and perused the record. 9. From the order-sheets of the trial Court, it would appear that the suit was filed on 9-4-2009. The trial Court directed issuance of summons to the defendants by ordinary mode as well as by registered post. On 4-5-2009, the order-sheet records that the summons issued to the defendanVappellant has been received unserved with a report that he has left the house and is residing at Jarhabhata. The notice issued to the attorney-holder was returned back with a report "refused to accept". Theorder-sheet further records the statement of plaintiffs' Advocate that the registered notice issued to the defendanVappellant has not been received back, therefore, it be awaited. The trial Court accepted the plea and awaited return of the registered notice issued to the defendant/appellant. From this order-sheet, it would clearly appear that two separate notices were sent for service of notice to the defendanVappellant; first notice was sent on his address at Jamshedpur, Jharkhand and second notice was sent to the attorney- holder. 10. On 11-5-2009, the order-sheet records that the summons issued to the defendanVappellant has been returned unserved with endorsement "wrong address". The trial Court directed the plaintiffs to pay fresh process fee for service of notice to the defendanVappellant by ordinary mode as well as by registered post and if the plaintiffs desire, they may serve the defendant/appellant by special messenger. On this date, the trial Court proceeded ex parte against the defendant No.2/respondent No.S/State. Strangely, the trial Court, after directing issuance of fresh summons to the defendant/appellant by ordinary mode as well as by registered post on 11-5-2009, posted the suit for appearance of the defendant/appellant on 14-5-2009. The address of the defendant/appellant was shown in the plaint as Motilal Bhalekar, S/o Late Shri Charan, by Caste Maharashtrian, Buddhist Mahar, Occupation Cultivation, R/o House No.H/178, Birsa Nagar, District East Singhbhoom, Jamshedpur, Jharkhand. Service of notice from a Court at Bilaspur, Chhattisgarh to a person residing at Jamshedpur within two days is an impossible task, therefore,at the first instance, the trial Court committed an error by posting the case on 14-5-2009 after directing issuance offresh summons on 11-5-2009. 11. On 14-5-2009, the order-sheet records that the plaintiffs submitted documents along with a list which was taken on record. The summons issued to the attorney-holder was received with an endorsement that when the Process Server went to the address ^ shown in the summons issued to the attorney-holder, it was informed / that he resides in a lane opposite Taj Masjid, Ward No.10, Talapara. The Process Server instead of returning the summons for being issued on the correct address of the attorney-holder, straightway went to Talapara and tried to effect service on a lady, who was allegedly wife of the defendant/appellant's attorney-holder. The Process Server recorded her refusal and also pasted one copy of the notice on the house of the attorney-holder. The trial Court accepted the report and treated the service of notice on the defendant/appellant's attorney-holder as valid service and thereafter proceeded ex parte against the defendanVappellant and posted the case for recording ex parte evidence on 29-6-2009. The ex parte evidence was ultimately recorded on 9-7-2009. The ex parte evidence was recorded and final arguments were heard on 9-7-2009 and the case was posted for judgment on 20-7-2009. On the date when the trial Court was supposed to deliver judgment, the plaintiffs filed an application under Order 6 Rule 17 of the Code for amending the plaint for adding a new relief clause. The trial Court allowed the application without issuing notice to the defendants and after permitting the plaintiffs to amend the plaint, again posted the suit for judgmenton 21-7-2009. 12. From the perusal of the order-sheets and after noticing the contents thereof, as mentioned above, it would clearly appear that the entire procedure regarding service of summons to the defendanVappellant was not only faulty but has been undertaken by the trial Court in hot-haste. Service on the defendant/appellant ^ suffered from the following defects: a (a) When the trial Court directed issuance of fresh summons by ordinary mode as well as by registered post on the defendant/appellant at his address mentioned in the plaint at Jamshedpur by its order dated 11-5-2009, the suit could not have been posted for appearance of the defendanVappellant on 14-5-2009, i.e., after granting only two days for service of summons jssued from Bilaspur, Chhattisgarh to a person residing at Jamshedpur, Jharkhand. (b) The trial Court did not wait for service of summons to the defendanVappellant at his address at Jamshedpur, Jharkhand and proceeded to declare him exparte on 14-5-2009. (c) When the Process Server went to effect service of notice on the defendant/appellant's attorney-holder on his address shown in the plaint as resident of Near Atta Chakki, Ambedkar Nagar, Magarpara, Bilaspur and the said attorney-holder was not available on that address and it was informed to the Process Server that he has shifted to a lane opposite Taj Masjid, Ward No.10, Talapara, the Process Server should have returned the summons for its issuance on the correct address of the attorney-holder. (d) Instead of returning the summons, the Process Server, of his own, without there being an order for service of summons on the correct address of the attorney-holder, went to his new address at Talapara. (e) In the report of the Process Server on the back side of the summons issued to the attorney-holder, it is mentioned that in his new address at Talapara, r"" J«-^>M3^S:^-a<.sa.<;n.a-n-.-',;^..i-...^.''.^£..,.-..-to,..-^.-^..^- (f) wife of the attorney-holder was available, however, her name is not mentioned by mentioning that she did not disclose her name. Thus, it is not known as to what is the name of the wife of the attorney- holder and the Process Server never tried to ascertain whether in fact the lady found at the new address of the attorney-holder at Talapara on which the summons was not at all issued for service, was, in fact, the wife of the attorney-holder. The endorsement regarding service ofsummons by affixing is not only irregular but also could not have been done on a house at Talapara because the summons was not at all issued for service on the attorney-holder at Talapara. ^\ ^ > 13. Thus, in view of the above found irregularities and defects in the proceedings of the trial Court, it is held that the service on the defendanVappellant either on his own address at Jamshedpur, Jharkhand or on the address of the attorney-holder was not at all complete and the trial Court committed serious illegality by treating the service as complete and proceeding ex parte against the defendant/appellant. 14. The instant miscellaneous appeal succeeds and is allowed. The impugned order dated 11-3-2010 is set aside and consequently, the ex parte judgment and decree dated 21-7-2009 in Civil Suit No.25-A/2009 is also set aside. There shall be no order as to costs. Gopal Sd/- Prashant Kumar Mishra Judge