1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CR No . 276 of 2002 Reserved on: 4.11.2008 Decided on :18.11.2008 Ruldoo Ram Gupta and another Petitioners Versus Anil Sapatia & others Respondents Coram: The Hon’ble Mr Justice Surinder Singh,J. Whether approved for reporting ?1yes. For the Petitioners: Mr. Ajay Kumar, Advocate. For the Respondent No.1 Mr. Naresh K.Thakur, Advocate. Surinder Singh,J. This revision petition is directed against the order s dated 30.4.2002 passed by the learned Additional District Judge, Una (H.P.) in CMA(RBT) No.39/2000/98 whereby he affirmed the orders dated 17.8.1998 passed by the learned trial court in Civil Misc. Application No.37 of 1990 for setting aside the exparte decree, dated 6.2.1989 passed in Civil Suit No.3 of 1988. 1 Whether the reporters of Local Papers may be allowed to see the judgment?yes. 2 Facts leading to the present petition may be stated thus. The respondent-plaintiff had filed a suit on 13.1.88 for recovery of a sum of Rs.71,604/- against defendant’s firm M/S Sat Kabir Khad Depot and M/S Muni Lal Radha Krishan including their partners. The case of the respondent- plaintiff was that he had been manufacturing Zinc Sulphate at Mehatpur under name and style of his firm “M/S Spatia Chemicals”, being its sole proprietor. It was alleged that M/S Sat Kabir Khad Depot placed an order No.SC/19 with the plaintiff on 10.1.1985 for the supply of 11 MT Zinc Sulphate, which was to be sent, as per the instructions of defendant Radha Krishan (now dead), through M/S Muni Lal Radha Krishan Grain Market Khanna, a sister concern of defendant M/S Sat Kabir Khad Depot. The supply was accordingly made and the goods were received by defendant No.3 Ram Chand, Manager of M/S Muni Lal Radha Krishan (defendant No.2). Price of the said goods were not paid despite repeated demands and requests, as such a notice was sent, when the amount was not paid the civil suit was filed claiming the principal amount along with interest @ of 18% per annum. 3 The summons in the suit were sent to the defendants by registered post on the given addresses, which were received back with the endorsement of “refusal”, as such the defendants were proceeded against exparte. Exparte evidence was led and thereafter exparte decree was passed on 6.2.1989 with costs, for the recovery of a sum of Rs.71604/- (Rs.46536/- as principal amount and Rs.25068/- as interest) along with future interest at the rate of 18% per annum simple interest. An application was moved for setting aside the exparte decree by the petitioners-defendants under order 9 Rule 13 of the Code of Civil Procedure, contending that relatives of respondent in Khanna, District Ludhiana, made fraudulent suppression of summons alleged to have been sent by post, from the knowledge of the defendants and managed to procure false reports of the postal employee, regarding its refusal. It was also contended that the addresses given on the envelops were also not correct. There was no due service of summons upon them and they had come to know about passing of the exparte decree on 24.3.1999 and moved the application for setting aside the exparte 4 decree. According to them, no procedure enjoined by the law for effecting service, was adhered to. The said application was resisted and contested by the respondent-plaintiff. According to him, the defendants were duly served in the case. The addresses given on the envelops were absolutely correct. Allegation of procuring false report is wrong and prayed for dismissal of the application. On the pleadings of the parties, the following issues were framed: 1. Whether there are sufficient grounds to set aside the exparte order, as alleged? OPA 1-A. Whether the application is within time as alleged? OPA 2. Relief. The learned trial court held both the issues against the petitioners (defendants) and their application, under order 9 Rule 13 read with Section 151 CPC was dismissed on 17.8.1998, which was unsuccessfully challenged in appeal before the learned Additional District Judge. Their appeal was dismissed on 30.4.2002. In this civil revision petition, orders of the courts below have been assailed on the ground that the courts below acted with material illegality, impropriety and committed 5 serious irregularity in appreciating the law and facts. At the very outset, Shri Thakur, learned counsel for plaintiff-respondent has raised preliminary objection, regarding the maintainability of the revision petition under section 115 of the Code of Civil Procedure and submitted that the courts below have held that the petitioners (defendants) had refused to accept the registered letters and thus summons were duly served upon them and further the impugned order does not suffer from any jurisdictional error. He further urged that the courts below have neither acted illegally nor material irregularity was committed in the exercise of their jurisdiction. Mr. Ajay Kumar, learned counsel for the petitioners has strenuously argued that the order passed by the learned trial court was not in conformity with the law, therefore, there is no legal bar in filing the present petition. I have given my thoughtful consideration to the rival contentions and have carefully examined the record. It is well settled that when some illegality or material irregularity is committed 6 by the subordinate courts in the manner of the exercise of its jurisdiction, that is, if some procedural errors in exercise of its jurisdiction are committed resulting into any illegality or material irregularity, such errors can be rectified by this Court, while exercising the powers under section 115(1)(c)of the Code of Civil Procedure, in short the ‘Code’ if the impugned order would occasion a failure of justice or cause irreparable injury to the party. At the time, when the suit was pending before the learned trial court in the year 1989, Rule 19-A of order 5 of the Code was in existence, which provided for simultaneous issue of summons for service by post in addition to personal service. Rule 19-A as it then existed, was as follows: “19A. (1) The Court shall, in addition, to and simultaneously with, the issue of summons for service in the manner provided in rules 9 to 19 (both inclusive) also direct the summons to be served by registered post, acknowledgement due, addressed to the defendant, or his agent e4mpowered to accept the service, at the place 7 where the defendant, or his agent, actually and voluntarily resides or carrier on business or personally works for gain: Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the court considers it unnecessary. (2) When an acknowledgement purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant. Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this 8 sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the court within thirty days from the date of the issue of summons”. This rule (19-A) was inserted by the Amendment Act 1976 with the object of preventing delay in service of summons and frustrate attempts to avoid service by the defendants. Its sub rule (1) above provided for double service one under rules 9 to 19 and another under 19.A by registered post acknowledgement due. Rule 19-A of the code was deleted in the year 2002 by an amendment Act No: 46 of 1999 which came into force w.e.f 1.7.2002. Here in this case we are concerned with the pre-amendment position of the rule prior to 1.7.2002, when the said rule was notified to be omitted. When an application for setting aside an exparte decree, the question of summons is required to be examined, would include the question whether this rule 19.A which then existed was complied with or not, which interalia says that when the 9 endorsement of refusal is there, the court issuing the summons had declared that the summons had been duly served on the defendant(s). In the instant case, the court below did not make a declaration regarding the due service of the defendants. This sub-rule was important inasmuch as it provided that (1) when an acknowledgement purporting to have been signed by the defendant or his agent is received or (2) the postal letter containing summons is received back by the court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent has refused to accept such postal article to him, the court issuing the summons shall declare due service on the defendant. The word “shall” in sub rule 2 indicates that such a declaration was mandatory. Although the question of compliance of Order 5 Rule 19A by the court in making a declaration regarding ‘due service’, is a procedural matter and if any error in this regard has been committed, then it would be considered a procedural error amounting to material irregularity in the exercise of the jurisdiction by the court 10 and in case it is found that compliance of Order 5 Rule 19-A as to express declaration of due service is a must and the same has not been made, then the order without compliance if allowed to stand, it would occasion failure of justice or would cause irreparable injury to the defendant. Therefore, in my opinion the instant revision petition is competent and would lie against such order. Further Order 9 Rule 6(1) and (1)(a) and 2 are also important in this behalf which reads as under: “6. Procedure when only plaintiff appears.-(1) where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then— (a) When summons duly served.- if it is not proved that the summons was duly served, the court may make an order that the suit be heard exparte; (b) When summons not duly served.- if it is proved that the summons was duly served, the court shall direct a second summons to be issued and served on the defendant; The above provisions also have been made to safeguard the interest of the defendants who do 11 not put in appearance before the court despite service, and also with a view to prevent the plaintiff from getting exparte decree in collusion with the serving official, whether a process server or a postman. The trial court, therefore, has to ensure that the defendants have willfully remained absent inspite of knowledge of the suit. The factum of “due service” was required to be recorded by the trial court, which was not done in the instant case. It is also not clear whether the summons to the defendant were also accompanied by a copy of plaint. Unless it is so, the summons cannot be said to be duly served. The learned trial court accepted the report of “refusal” alleged to have been recorded by the postman on its face value which was disputed on oath by the defendants in the statement recorded in the proceedings for setting aside the exparte decree and the plaintiff did not rebut it either by examining the postman or any other official of the postal authority to substantiate the said report. In fact, endorsement made by a postal official thereon would only invoke a statutory presumption regarding due service of notice, but in view of the drastic consequences of such deemed 12 service of notice, the evidence regarding refusal of notice must be clear and convincing, whenever the correctness of the said endorsement is disputed. In the instant case, the statutory presumption stands rebutted. The application in Civil Suit No. 3 of 1988 for setting aside the ex- parte decree, was filed from the date of knowledge. The acceptance of summons by so called Manager RW-1 Ram Chand can also not be said to be the service for and on behalf of the defendant firm as the plaintiffs have failed to prove him as the Manager or for that matter the recognized agent of the defendant firms in terms of Order 3 Rule 2 of the Code. There was no “due service” of notice upon the defendants (petitioners), hence the impugned orders dismissing the application of the defendants for setting aside ex-parte decree and its affirmation in appeal by the learned Additional District Judge in Civil Misc. appeal No.39/2000/98 decided on 30.4.2002 is set-aside. Consequently, the application under order 9 rule 13, C.P.C. filed by the defendant-petitioners stands allowed. As a sequel and consequences of above, the ex-parte decree passed on 6.2.1989 in 13 civil suit no. 3 of 1988 is set-aside. Now the suit in the trial Court shall revive and be registered against its original number and the learned trial Court shall proceed with the suit from the stage it was proceeded ex-parte. Keeping in view the age of the case, its disposal shall be expedited on priority. The petition stands disposed of accordingly. November 18, 2008 (Surinder Singh),J. (D)