1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7972 OF 2009 SCHIN RANGRAO SHINDE age 27 years, Occ. Business, R/o Osmanabad, Tq. & Dist. Osmanabad. PETITIONER. (orig. plaintiff.) V/S NISAR DAGDU SHAIKH age 45 years, Occ. Business, R/o Nisar Dhaba, Opp. Hotel Rajasab, Osmanabad, Tq. & Dist. Osmanabad. RESPONDENT. (orig. defendant.) Shri R.N.Dhorde, h/f P.S.Dighe, Advocate for the petitioner. Shri K. J. Suryawanshi, Advocate for the respondent sole. CORAM : S. B. DESHMUKH, J. DATE : 1ST FEBRUARY, 2010. ORAL JUDGMENT :- 1. Heard counsel for the parties. 2- Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3- Question raised in this writ petition by the petitioner, pertains to service of summons, to the respondent (original defendant) under Order 5 Rule 20 of the Code of Civil Procedure. The First Appellate Court, allowed Misc. Civil Appeal No. 64/2009 by judgment and order dated 07.11.2009. By this Order, First Appellate Court has quashed and set aside exparte judgment and decree passed in Special Civil Suit No.48/2003 dated 27.04.2004. First Appellate Court also imposed costs of Rs. 2 2,000/- on the defendant to be paid to the original plaintiff. Defendant was further directed to appear before trial court on 21.11.2009 and trial court was further directed to decide the matter as early as possible, after giving priority over the other suits. 4. The petitioner is plaintiff in Special Civil Suit No.48/2003, filed in the Court of learned Civil Judge (S.D.) Osmanabad. Annexure ‘A’ is copy of plaint on record. This suit seems to be for recovery of amount of Rs.1,73,000/- filed against the respondent/defendant. Parties herein after are referred to their status in Special Civil Suit No.48/2003. Annexure ‘B’ shows that trial court decreed the suit with costs by judgment and decree dated 27.04.2004. While passing this judgment and decree trial court had framed only one point as to “whether plaintiff is entitled to an amount of Rs.1,73,000/- as alleged. In paragraph No.4 of the judgment, trial court has observed that the defendant though served with suit summons failed to appear in the matter, and hence suit proceeded ex-parte against him. 5. Defendant being aggrieved and dissatisfied with the judgment and order passed by the trial court, in special civil suit No. 48/2003 filed Misc. Civil Application No.125/2009 filed in the court of learned Civil Judge Senior Division, Osmanabad. This was an application filed by defendant under order IX Rule-13 of the Code of Civil Procedure. Annexure ‘C’ is copy of the application on record, seems to have been filed on August 17, 2004. This application was opposed by the original plaintiff by filing reply annexure ‘D’. Parties led evidence in support of their pleadings in Misc Civil application No.125/2009 filed under Order 9 Rule 13 of Code of Civil Procedure. Trial Court after hearing parties, and considering their pleadings and 3 oral evidence, rejected the application filed by the defendant under Order IX Rule 13 of Civil Procedure Code by the order dated July 21, 2009. Trial Court framed two points for determination in this application under Order IX Rule 13. First point framed by the trial court is that ‘whether applicant has made out just, proper and sufficient grounds for setting aside exparte judgment and decree”. In paragraph No.5 trial court has appreciated the evidence led on behalf of the parties. In cross examination, it appears that defendant admitted that prior to 7-8 days of 15-08-2003 he had been to State of Jammu and Kashmir, stayed for about 3 to 3 and half months. He admitted that he was present at Osmanabad in the month of December, 2003. He also admitted to the hospital for about 10-12 days in the month of December, 2003. Name of the hospital is mentioned as Dr. Gapat’s Hospital. Learned judge observed that there is no evidence led by the defendant on this point. 6. In paragraph No.6 learned trial court, based on the evidence recorded that in the month of December, applicant/original defendant was present in Osmanabad city. Report of summons is perused by the trial court dated 05.12.2003 submitted by process server Mr. Bone. Learned trial court has considered evidence and observed that service effected by the process server Mr. Bone to the defendant, on 04.12.2003 cannot be said to be illegal. Learned judge observed that at the most it can be said that while serving suit summons some irregularities have been committed, as instead of pasting summons on the door of the applicant (defendant), there was service effected, i.e personal service of the suit summons on him. Trial court find that suit summons was duly served on the applicant (i.e. original defendant). This was the reason for the trial court for reaching a conclusion that no just and sufficient ground has been made out by the defendant for quashing and 4 setting aside exparte judgment and decree. 7- Order passed by the learned trial court dated July 21, 2009 in Misc. Civil Application No.125/2009 filed under Order IX Rule 13, was subject matter of Misc. Civil Appeal filed before learned District Judge, Osmanabad by the plaintiff. It was registered as Misc. Civil Appeal No.64/2009. Said appeal is allowed by the First Appellate Court. 8- It is a matter of common knowledge that now a days civil Courts are drowned in a oceanic litigation, instituted, pending for indefinite period of time. For pendency of civil litigation in various courts in a country there are various reasons. Parliament, in its wisdom choose to introduce various amendments to the Code of Civil Procedure. Since we are concerned with the order 5 of the Code of Civil Procedure, it would be appropriate to allow an amendment which is introduced to Order 5 Rule 1 of the Code of Civil Procedure, made enforceable from July 1, 2002. Order V 1. Summons - “(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence,if any, within thirty days from the date of service of summons on that defendant : Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim : Provided that further where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.” 5 9- This amended sub rule 1 provides that when a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within 30 days from the date of service of summons on defendant. Proviso is more important. It says that: Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim. 10- This amendment therefore has taken into account a situation that defendant who otherwise has acquired a knowledge that a particular suit is instituted against him by the plaintiff without summons from the court, he may appear before the Court if he chooses to do so, also may admit the plaintiff’s claim raised in the plaint. In that contingency, this proviso of Order V Rule 1 sub rule 1 provides that issuance of summons to such defendant is not necessary. Second proviso of this order 5 Rule 1 makes it further clear that, where defendant fails to file written statement within the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of the summons. 11- The amended provision of Order V (1) (1) has been brought on statute with an aim and object to curtail the life of civil litigation. This amendment obligates the defendant to file his written statement or his defence within a period of 30 days from the date of service of summons on him. For the first time, such an important amendment has been brought in by the parliament in its wisdom. Various situation, in daily human life, have not been ignored by the parliament. Some time, defendant may not be able to get documents and record from the source available, some time 6 defendant may be face health problem, sometime it is possible that defendant could not approach to his lawyer and so on. To facilitate the defendant to file written statement, this amendment Order 5 rule 1 (1) by second proviso, enlarges the period of filing of written statement from thirty days to ninety days. While doing so, it has been made obligatory on the part of the learned judge, at the first instance to record reasons in writing i.e. enlargement of time from 30 days to 90 days for filing of written statement. 12- So far mode of service of summons is concerned Order V Rule 10 provides that : Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court. Thus, mode of service provided, “shall be delivering or tendering a copy thereof by such officer as he appoints in this behalf. It is a matter of common knowledge that bailiff/process server are appointed for such job. Order V Rule 12 makes it obligatory that : wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service. Thus, service of the summons, if defendant does not appear on the date of filing of the plaint, it is contemplated through process server and such service wherever it is practicable shall be made on the defendant in person. Service on adult member of the defendant, is also permissible under Order V rule 15. If service is effected to the defendant personally, or to an agent or other person in his behalf, Order V rule 16 obligates such person i.e. defendant/his agent/other person on behalf of defendant to put his signature towards acknowledgment of service and receipt of 7 the copy of the summons and accompanying, if any. Order V Rule 17 where defendant refused to accept service or cannot be found, Order V Rule 20 provides a substituted service. There, again Order V Rule 20 sub rule 2 is material, significant and important. It provides that service substituted by the order of the Court shall be as effectual as if it has been made on the defendant personally. 14. Scheme of Order V Rule 1 to 20, which has been referred to in foregoing paragraphs, therefore contemplates service of the summons personally to the defendant, his agent/adult member of his family and such service, is thus, considered to be a good service. Order V Rule 17 and order V Rule 20 are the cases, in the situation mentioned in those provisions itself. In case of difficulties in personal service to the defendant, these two exceptions have been carved out however, the aim and object of order V is to serve the summons to defendant personally and by way of such officer i.e. process server or bailiff. 15. Counsel appearing for the respondent (original defendant) relied on the judgment of learned Single Judge of this Court in the matter of Jerome Anthony D’silva V/s. T. Pannala and another reported in [ 1998 (2) Mah L R 6771 ]. With the assistance of counsel appearing for the respondent, I have gone through the judgment. It is a small order of learned Single Judge of this Court. Spl. C.S.No. 48/2003 in the case on hand was filed on 16.08.2003 (page 25). Obviously amended provision of Order V of Code of Civil Procedure is applicable to the facts of the present case on hand. In contrast to this, judgment of learned Single Judge of this Court, in Writ Petition No. 574/1998, decided on 10/02/1998 (supra) facts have not been mentioned in this short order. In substance, judgment of learned Single Judge relied 8 upon by learned counsel for respondent has absolutely no relevance to the facts, brought on record. 16. Order passed by the First Appellate Court is perverse. First Appellate Court did not refer to the date of filing of the suit, First Appellate Court did not refer to Order V and any of the rules. First Appellate Court even did not refer the report of the process server which is on record before this Court (page 54). This report makes it clear that, summons in question had been carried by the process server to the house of defendant on 04.12.2003. Process server, in fact, was executing order passed by the trial court to paste copy of the summons on the door or conspicuous part of the house of the defendant. In these circumstances, from the evidence on record, it has been observed by the trial court that defendant requested him i.e process server, accepted summons, put his signature in token of acknowledgment, put date also as 04.12.2003. This was in the presence of some witness. This fact has been reported by the process server (page 56). This is report of the process server dated 05.12.2003. This report has been heavily relied upon by the trial court. No reason has been given by the First Appellate Court to upset the order passed by the trial court based on evidence. The order passed by the First Appellate Court therefore requires to be quashed and set aside. Service to the defendant is in accordance with the Order V and is good service. Mechanically pasting of the summons on a conspicuous part of the house of the defendant, when defendant was present, requested process server, put his signature, acknowledged the receipt was/is not necessary. Order impugned is perverse. 9 17. In this view of the matter, I am inclined to allow writ petition. Writ petition is accordingly allowed. Order impugned is quashed and set aside. Order passed by the trial court rejecting Misc. Civil Application No.125/2009 is restored. Rule is made absolute in above terms however without any order as to costs. ( S. B. DESHMUKH ) JUDGE. ..... aaa/7972.09