C.R.No.3140 of 2011(O&M) #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.3140 of 2011(O&M) Date of decision: 11.5.2011 Chetan and another ….Petitioners Vs. Shish Ram and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Sudhir Aggarwal, Advocate for the petitioners. Jaswant Singh, J Petitioners (legal representatives of original plaintiff-Kishori Lal/decree holder) has filed the present revision petition under Article 227 of the Constitution for setting aside the impugned judgment dated 24.3.2011 (P.4) passed by the learned Additional District Judge, Rewari whereby appeal of defendant-respondent No.1 against the order dated 18.8.2010 passed by learned trial Court/Executing Court dismissing their application filed under Order 9 Rule 13 of the Code of Civil Procedure,1908 (hereinafter to be referred as “CPC”) for setting aside the ex parte decree dated 5.12.2008 has been allowed. Brief facts of the case are that the plaintiff-decree holder Kishori Lal filed Civil Suit No.210 dated 15.6.2006 for possession against defendant-respondent No.1, which was decreed ex parte vide judgment and C.R.No.3140 of 2011(O&M) #2# decree dated 5.12.2008. Defendant-respondent No.1 filed an application dated 12.4.2010 for setting aside the said ex parte judgment and decree, which was opposed by the plaintiff-Kishori Lal. After hearing both the parties, learned trial Court/Executing dismissed the application. On an appeal having been filed against the order of learned trial Court, the same has been allowed vide the impugned judgment dated 24.3.2011 with a direction to the learned trial Court to decide the application dated 12.4.2010 (P.1) afresh after framing the issues by leading evidence of both the parties within a period of two months, hence the present petition. Learned counsel for the petitioners submits that Munadi was ordered when respondent No.1 was not available on 21.11.2006 and Munadi was conducted in the presence of two witnesses namely Ram Kumar and Seva Ram and therefore, the ex parte order dated 8.1.2007 is perfectly legal and valid which requires no adjudication by framing an issue. It is further argued that the application was filed after a delay of more than one year and as such it was highly belated. After hearing learned counsel for the petitioners and perusing the paper book, this court does not find any merit in the petition and the same deserves dismissal for the following reasons. The law is well settled for deciding an application under Order 9 Rule 13 of the CPC that until and unless the circumstances reveal that the applicant was absolutely careless or grossly negligent while pursuing his case which has resulted into passing of the ex parte decree, the same may be ordinarily set aside and the matter may be heard and decided after affording an opportunity of hearing to the aggrieved party in view of the basic principle of law that no one should be condemned unheard. The C.R.No.3140 of 2011(O&M) #3# service of summons upon the concerned party is a very serious matter and it should not be taken so lightly as has been done in the present case. The moment, it is proved that someone was proceeded ex parte without following the due procedure of law, the entire proceeding undertaken after passing of such ex parte order would be in gross violation of basic princples of natural justice, which is applicable to all courts of law established in a civilized society to render complete justice between the affected parties. Therefore, the whole endeavour of the Court should be to do complete justice between the parties. In the present case, the suit for possession was filed on 15.6.2006 by the decree holder-Kishori Lal against the defendant- respondent No.1 and the notice of the same was issued by the learned Civil Judge (Jr. Division), Rewari to defendant-respondent No.1 for 4.9.2006 on filing of PF and copy of plaint etc. On 4.9.2006, the notice to defendant- respondent No.1 could not be issued for want of copy of plaint and as such the fresh notice was issued for 13.10.2006. On 13.10.2006 also, the position remained the same as no notice to the defendant-respondent No.1 could be issued for want of copy of plaint and in this regard, orders dated 4.9.2006 and 13.10.2006 being relevant are reproduced as under: “Notice to defendant not issued for want of copy of plaint. Same be issued for 13.10.2006 on filing of copy of plaint etc. Sd/- CJ(JD), Rewari 4.9.2006” “Notice issued to defendant No.1 not issued for want of copy of plaint. Same be issued again for 21.11.2006. CJ (JD) Rewari 13.10.2006” On 21.11.2006, the notice issued to defendant-respondent No.1 received back unserved and the learned trial Court ordered that notice to the C.R.No.3140 of 2011(O&M) #4# defendant-respondent No.1 be issued through Munadi as well as registered post for 8.1.2007 on filing of munadi fee and registered post. On 8.1.2007 registered letter along with A.D received with the report that the defendant-respondent was not present at house and the munadi has been received back duly effected and after calling the case several times and waiting till 2.30 p.m, the learned trial Court proceeded against defendant-respondent No.1 ex parte and the case was adjourned to 8.9.2007 for ex parte evidence of the plaintiff and order dated 21.11.2006 and 8.1.2007 are reproduced hereunder: “Notice issued to defendant received back unserved. Now notice to the defendant be issued through munadi as well as registered post for 8.1.2007 on filing of munadi fee and registered post. CJ(JD) Rewari, 21.11.2006” “Registered letter along with AD received with the report that the defendant was not present at his house. Munadi has been received back duly effected. Case called several times since morning. It is 2.30 PM. No further wait is justified. Hence, the defendant is proceeded against ex parte. Now case is adjourned to 8.9.2007 for ex parte evidence of plaintiff. CJ (JD), Rewari 8.1.2007” A perusal of the order dated 8.1.2007 reveals that registered letter was received back with the report that defendant-respondent No.1 was not present at his house but the only basis for proceeding the defendant- respondent No.1 ex parte was munadi. Therefore the moot points to be considered in the present case are : (1) whether the recourse to substituted service by way of munadi was appropriate and justified; (2) whether the munadi was duly effected for the service of defendant-respondent No.1; (3) whether the application under Order 9 Rule 13 CPC was barred by limitation. C.R.No.3140 of 2011(O&M) #5# Point No.1 = whether the recourse to substituted service by way of munadi was appropriate and justified or not? Learned trial Court while dismissing the application vide order dated 18.8.2010 has observed as under: “After carefully perusing the case file and going through the respective submissions of the counsel for both the parties, this Court is of the opinion that in the present case the perusal of the original file reveals that repeatedly notices have been sent for services upon the defendant initially notice was sent on 4.9.2006, when same was received back unserved. Thereafter, again notice was issued on 13.10.2006 when again same has been received back unserved and this report shows that one copy of the summon as well as the plaint was affixed on the door of the house of defendant and presence of witness Ram Kanwar have been recorded. Defendant was ordered to be served through munadi as well as through registered post for 8.1.2007. Munadi which has been effected shows that the same has been done by way of beat of drums and even the presence of witnesses Ram Kanwar and Sewa Ram has been recorded. After the Munadi has been effected, report has been given that wife of the defendant appeared and stated that defendant is admitted in the Hospital in Jaipur. Therefore, wife of the defendant gained the knowledge about the pendency of the present suit as well as next date of hearing which was clearly mentioned to be 8.1.2007. Also, at the same time registered AD which has been received back shows repeatedly efforts were made to get the same executed but every time no one received the registered letter. Therefore, on 8.1.2007, it was observed that Munadi has been duly effected and the defendant was proceeded against ex parte.” Learned trial Court further observed as under: “Order 5 Rule 17 provides the procedure when the person refuses to service or cannot be found and in such circumstances serving officer has to affix the copy of summons on the outer door and C.R.No.3140 of 2011(O&M) #6# some other conspicuous part of the house in which defendant ordinarily resides and in whose presence copy has been affixed is also to be mentioned. As has been discussed herein above, munadi has been effected and the same has been done by beat of drums and copy has been affixed on the door of the house of the defendant and presence of witness Ram Kanwar and Sewa Ram has been recorded. Therefore, in the present case, defendant had the knowledge of decree and the period of limitation commences from the decree itself and the ruling of the case titled Amarjit Singh and another Vs. Balwant Singh 2000(3) RCR (Civil) 81 (supra) is not applicable in the present set of circumstances. Thereafter, it cannot be said that he was not given to proper chance to defend his case.” The order V of the CPC provides for issue and service of summons and the relevant rules 12, 15, 16 & 17 thereof are reproduced as under: “12. Service to be on defendant in person when practicable, or on his agent.- Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. 15. Where service may be on an adult member of defendant's family.- Where in any suit the defendant is absent from his residence at the time when the service of summons 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 he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation.- A servant is not a member of the family within the meaning of this rule. 16. Person served to sign acknowledgement.- Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service C.R.No.3140 of 2011(O&M) #7# endorsed on the original summons. 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 acknowledgement, or where the serving officer, after using all due and reasonable diligent, 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.” A perusal of Rule 12 clearly envisages that wherever practicable, the service shall be made on the defendant in person unless he has an agent empowered to accept the summons. Rule 15 talks about service of summon through adult member of defendant's family when the defendant is absent from his residence at the time of service but there is a pre-condition that there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept the summons on his behalf. Rule 16 further mandates that where the copy of summon is delivered to the defendant personally or through an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of C.R.No.3140 of 2011(O&M) #8# service endorsed on the original summons. But in the present case there is nothing on record to substantiate that it was not practicable to serve the defendant in person. It is also not proved that summons have been served on adult member of defendant's family or there is any report that there is no likelihood of the defendant being found at the residence within a reasonable time. Again there is nothing on record to prove that the wife of the defendant has put her signature in lieu of receipt of any acknowledgement of summon. Strangely, the learned trial Court has straightway taken recourse to substituted service by way of munadi by invoking Rule 17 of Order V, which was not at all justified in view of the fact that neither there was any refusal to receive the summons either by the defendant himself or his wife; nor the serving officer has reported that there is any likelihood of his (defendant) being found at his residence within a reasonable time. Therefore, there was no occasion for the learned trial Court to take recourse to the provisions of Rule 17 Order V of the CPC and in fact, the learned trial Court has acted in haste by ignoring the relevant provisions of the CPC discussed above. The finding of the learned trial Court that “repeatedly notices have been sent for service upon the defendants” is contrary to the record of the case, which can be proved from the order dated 4.9.2006 and 13.10.2006 reproduced above. Further on 21.11.2006, the notice issued to defendant-respondent No.1 received back unserved and on the next date of hearing i.e 8.1.2007, the defendant-respondent No.1 was proceeded ex parte, therefore, this finding of learned trial Court is perverse and liable to be set aside. Point No.2= whether the munadi was duly effected for the service of C.R.No.3140 of 2011(O&M) #9# defendant-respondent No.1 or not? After adjudication of Point No.1, there is no need to decide point No.2 by this Court. Point No.3= whether the application under Order 9 Rule 13 CPC was barred by limitation or not? The finding of the learned trial Court to the effect that “in the present case, defendant had the knowledge of decree and the period of limitation commences from the decree itself” is not sustainable in the eyes of law as there is nothing on record to prove that the defendant had ever any knowledge of the ex parte decree dated 5.12.2008; rather the whole exercises undertaken by learned trial Court while taking recourse to the munadi was taken in violation of the provisions of Rule 12,15,16 & 17 of Order V CPC and averment in paragraph 2 of the application (P.1) that defendant-applicant came to know of the ex parte decree dated 7.4.2010, when the plaintiff-respondent came to obtain the possession of the suit property on 7.4.2010 is perfectly justified, hence the application dated 12.4.2010 is within the prescribed period of limitation and not time barred as observed by learned trial Court and the findings of learned trial Court are not legally sustainable. In view of the above, learned Additional District Judge has rightly set aside the order dated 18.8.2010 passed by the learned trial Court/Executing Court while directing the application moved by the defendant-respondent under Order 9 Rule 13 CPC to be decided afresh after framing of issues and to provide opportunities to both the parties. Keeping in view the facts and circumstances discussed hereinabove, no illegality or perversity can be found with the impugned C.R.No.3140 of 2011(O&M) #10# judgment dated 24.3.2011 passed by the learned Additional District Judge, Rewari warranting interference under Article 227 of the Constitution. Dismissed with costs of Rs.10,000/-. Nothing expressed hereinabove shall be construed to be an opinion on the merit of the case while deciding the application dated 12.4.2010 (P.1) filed under Order 9 Rule 13 CPC by the defendant- respondent No.1. May 11, 2011 ( JASWANT SINGH ) manoj JUDGE