// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Second Appeal No.365/2003 Nirmal Singh S/o Shri Hingalajdan ...plaintiff-appellant Versus State of Rajasthan & Others ...defendant-respondents Date of Order ::: 24.11.2006 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Man Singh Gupta, Counsel for plaintiff-appellant Smt. Nirmala Sharma, Addl. G.A., for defendant- respondents #### //Reportable// By the Court:- With the consent of learned counsel for both the parties, this appeal is being disposed of finally at this stage itself. Heard learned counsel for both the parties. This plaintiff's second appeal under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree dated 21st of September, 2002 passed by the Additional District Judge No.5, Jaipur City, Jaipur, in Regular Appeal No.43/2002, whereby he, while setting-aside the judgment and decree dated 29th of May, 1999, passed by the lower court decreeing the suit of the plaintiff, // 2 // allowed the appeal of the defendants and dismissed the suit filed by the plaintiff. The learned counsel for the plaintiff-appellant contended that he did not receive any notice of hearing of the appeal by the first appellate court and without service of notice of hearing of the appeal, the appeal filed by the defendants has been allowed ex-parte by the first appellate court vide the impugned judgment. Following substantial question of law is involved in this second appeal:- Whether the plaintiff- appellant would be deemed to have been served with the notice of application under Section 5 of the Limitation Act and summon of the appeal particularly when the Police Station, Gandhi Nagar, Jaipur, informed the first appellate court to the effect that notices/summons of appeal are returned without service, on 21.3.2001. Briefly stated the facts of the second appeal are that the plaintiff filed a suit for declaration and permanent injunction in the lower court wherein it was pleaded that he was working as Inspector in the Police Department. The defendant no.3 served a notice upon him to show-cause on 13.5.1996 under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958, wherein he filed the reply. However, vide order dated 26.10.1996 one annual grade // 3 // increment was withheld without cumulative effect. Thereafter a departmental appeal was preferred by the plaintiff before the defendant no.2, which was partly- allowed vide order dated 5.3.1997 and the order of penalty was converted into an order of 'censure'. Thereafter a review petition was also filed by the plaintiff under Rule 34 of the Rules, but the same was dismissed vide order dated 5th of November, 1997. The plaintiff, therefore, prayed in the suit that the order of penalty, the appellate-order and the order passed in review petition, be declared as null-and- void and contrary to the principles of natural justice and the defendants be restrained not to consider the order of 'censure' while considering the case of the plaintiff for promotion to junior scale of the Rajasthan Police Service. The suit was contested by the defendants by filing written statement. The learned lower court framed four issues. Both the parties led their oral and documentary evidence. The learned lower court, after considering oral and documentary evidence and upon hearing both the parties, decreed the suit of the plaintiff. Being aggrieved with the same an appeal was preferred by the defendants before the first appellate court. A notice of this second appeal was given to the respondents and record of both the courts below was also summoned. From the record of the first appellate court it reveals that a notice of hearing of the appeal was issued by the first appellate court on 19.3.2001 for 22.3.2001. Plaintiff Nirmal Singh was // 4 // posted as Inspector, Police Station, Gandhi Nagar, Jaipur. A notice of appeal was sent to him at the address of Police Station, Gandhi Nagar, Jaipur. The notice was received on 21.3.2001 at Police Station, Gandhi Nagar, Jaipur. The Assistant Nazir of the Court, at the back of the summon, reported that he went at the address mentioned in the summon on 21.3.2001 and made an enquiry about Nirmal Singh and he was told that Nirmal Singh is present. Thereafter the Head Moharir had a talk with plaintiff on telephone and received copy of summon with copy of appeal and put his signature. There is one letter dated 21.3.2001 written by the Station House Officer, Police Station, Gandhi Nagar, Jaipur City, Jaipur, which is available in the file of the first appellate court thereby informing the first appellate court that Nirmal Singh, C.I., S.H.O., Police Station, Gandhi Nagar, Jaipur, has gone to search accused-persons in Jaipur City and Ajmer on 21.3.2001, therefore, a report of 'not served' ('adam-tamil') is submitted. The another copy of the summon was annexed without signature of anyone with this letter and also the copy of memo of appeal. It appears that on the basis of the report of Assistant Nazir of the Court, the first appellate court recorded a proceeding on 22.3.2001 that the respondent is not present in spite of service of summon and treated the service of summon of appeal on the plaintiff as sufficient. The summon dated 19.3.2001 issued for 22.3.2001 submitted by the Assistant Nazir, shows that although the summon was received by some other person on 21.3.2001 at Police Station, Gandhi Nagar, Jaipur, but it does not bear the signature of the respondent Nirmal Singh. The // 5 // Assistant Nazir has also not reported that he served the notice personally on plaintiff Nirmal Singh but he reported that Head Moharir talked with him on telephone and thereafter the notice with memo of appeal was taken after putting signature. The another letter dated 21.3.2001 with second copy of summon annexed with copy of memo of appeal sent to Nirmal Singh is also available on the record of the first appellate court, wherein it has been informed that on 21.3.2001 Shri Nirmal Singh had gone to search accused-persons in Jaipur City and Ajmer in Case No.522/2000 under Section 380 IPC, therefore, a report of 'not served' is submitted. The first appellate court treated the service of the appeal on the plaintiff as sufficient, therefore, no fresh summon was issued. The judgment of the first appellate court dated 21.9.2002 shows that it has been passed after hearing the Public Prosecutor on behalf of the defendant-appellants and no one was present on behalf of the plaintiff-respondent. After considering the above referred evidence and the original summon of appeal dated 19.3.2001 issued for 22.3.2001, makes it clear that it was not served upon plaintiff Nirmal Singh personally and there is no report of Assistant Nazir of the Court that he served the summon of appeal on plaintiff Nirmal Singh personally. In these circumstances, it is clear that the summon of the appeal was not served upon the plaintiff and the first appellate court committed an illegality in treating the service of summon of appeal on the plaintiff as sufficient on 22.3.2001. The first appellate court has decided the // 6 // appeal without hearing the plaintiff. Therefore, the question of law formulated in the present case is decided by holding that the summon of appeal was not served on the plaintiff, before the first appellate court. Consequently, the second appeal is allowed. The impugned judgment and decree dated 21.9.2002 passed by the first appellate court is set-aside. The case is remitted back to the first appellate court with a direction to decide the appeal afresh after affording proper opportunity of hearing to both the parties. The registry is directed to send-back the record of both the courts below to the Court of Additional District Judge No.5, Jaipur City, Jaipur. Both the parties are directed to appear before the Court of Additional District Judge No.5, Jaipur City, Jaipur, on 18.12.2006. There shall be no order as to cost. (Narendra Kumar Jain) J. //Jaiman//