It is the bounden duty of every Court to verify personally that the summons was served in accordance with law: High Court of Chhattisgarh

1AFRHIGH COURT OF CHHATTISGARH BILASPUR M.A. No. 919Reserved on 04.10.2021Pronounced on 25.10.2021Sati Bai Nishad Wd o Late Bhikham Prasad Aged About 34 YearsR o House No. 330 Ward No. 15 Banbarad Ahiwara TahsilDhamdha District Durg Chhattisgarh. AppellantVersus 1.Santosh Kesari S o Late Sarjoo Prasad Gupta Aged About 38 YearsR o Shadapara Kishan Chowk Infront Of Durga Mandir Camp 2 Bhilai Tahsil And District Durg Chhattisgarh.2.State Of Chhattisgarh Through The Collector Durg District DurgChhattisgarh. RespondentsFor Appellant:Shri Ganesh Burman Advocate.For Respondent No.1:Smt. Aditi Singhvi Agrawal Advocate.For State Respondent No.2:Shri Sanjeev Kumar Agrawal P. L.Single Bench:Hon ble Shri Sanjay S. Agrawal JCAV Judgment Order1.This appeal has been preferred by the Applicant who is the widowof the original Defendant No.1 Bhikham Prasad under Order 43 Rule1(d) of Code of Civil Procedure 1908in M.J.C.No.167 2019 whereby the learned Court below has refused to set asidethe ex parte judgment and decree dated 31.03.2016 passed in Civil SuitNo.56 A 2014 while rejecting the application filed under Order 9 Rule 13of CPC. The parties to this appeal shall be referred hereinafter as per theirdescription before the Court below.2.According to the learned counsel for the Applicant the finding of the 2Court below rejecting the application filed under Order 9 Rule 13 of CPCby holding that the Applicant has failed to assign any reason for nonappearance of her husband on 05.11.2015 is apparently contrary to law. Itis contended further that the Applicant s husband was not aware regardingthe institution of the said suit as the summons of it was neither servedupon him nor any counsel was engaged by him. Further contention of himis that since the reasons assigned in the application was not controvertedby the Plaintiff Non applicant No.1 therefore under such circumstances the Court below ought not to have rejected the said application for settingaside the ex parte judgment and decree dated 31.03.2016 passed in C.S.No.56 A 2014.3.On the other hand learned counsel appearing for Non applicantNo.1 Plaintiff has supported the order impugned as passed by the Courtbelow.4.I have heard learned Counsel for the parties and perused the entirerecord carefully.5.From perusal of the record it appears that an ex parte judgmentand decree dated 31.03.2016 was passed in a suit for specificperformance of contract instituted by the Plaintiff against the husband ofthe Applicant namely Bhikham Prasad. In the said suit the Applicant shusband was proceeded ex parte on 05.11.2015 and ex parte judgmentand decree was accordingly delivered on 31.03.2016.6.For setting aside the aforesaid judgment and decree an applicationwas made under Order 9 Rule 13 of CPC wherein it has been alleged bythe Applicant that her husband was informed by the Kotwar of theconcerned village regarding initiation of mutation proceedings which was 3pending before the Court of Nayab Tehsildar Ahiwara with regard to theproperty in question bearing Khasra No.1206 1207 3 1207 6 1207 7 and1207 9 admeasuring 0.40 0.40 0.10 0.18 and 0.19 hectare respectivelyowned by him. It is contended further that upon knowing the said fact herhusband had applied for obtaining the certified copy of the relevant paperson 15.10.2018 and in pursuance thereof it was delivered to her on22.11.2018 as her husband was died in the mean time in a road accidenton 20.10.2018. Further contention of the Applicant was that since herhusband had never received any notice from the concerned Court nor hadever engaged any of his counsel to contest the said suit on his behalf therefore the ex parte judgment and decree delivered on 31.03.2016 inCivil Suit No.56 A 2014 is liable to be set aside. 7.Perusal of the record of the said suit would show that the concernedtrial Court vide its order dated 27.11.2014 had directed to serve thesummons of the suit upon Defendant Bhikham Prasad through SpecialProcess Server while fixing the case for 20.01.2015. However no servicereport as such was found to be placed on record though was required tobe returned by the Process Server by virtue of the provision prescribedunder Rules known as MP CG Civil Court Rules 1961 framed underSection 23 of the M.P. C.G. Civil Courts Act 1958. Rule 72 of it is relevantfor the purpose which provides as under: 72.(1) Every process server must immediately afterservice or non service writes clearly with his own handat the place of service and in the presence ofwitnesseshis report of service or non serviceand must also state the date hour and exact place ofservice or non service.(2)All returns of service or non service shall bemade in formimmediately after service ornon service. The space on the back of the form may 4be utilised where necessary for continuation of theentry in column 4. The process server shall sign at thefoot of each return before making the same over withthe process to the Nazir or Naib Nazir.8.According to the aforesaid provision the report was required to beplaced on record by the Process Server in order to ascertain as to whethersaid defendant Bhikham Prasad was served with the summons of the suitor not as directed by the trial Court vide order dated 27.11.2014. Inabsence thereof it cannot be said that the summons of the suit was dulyserved upon him yet he was proceeded ex parte by the trial Court vide itsorder dated 05.11.2015. No doubt the Court shall always be justified inproceeding ex parte if it is convinced that the defendant or the oppositeparty despite service of the summons and knowledge of the pendency ofthe proceedings had chosen to remain absent but before proceeding exparte the Court must advert itself to the legal requirements as providedunder Order 5 of the CPC which is the complete code regarding service ofthe summons on the opposite party. It is therefore the bounden duty ofevery Court to verify personally that the summons were served inaccordance with law and the party despite service of the summons hadchosen to remain absent which is however found to be completelymissing in the instant matter as observed herein above9.It appears further that although a duly signed Vakalatnama hasbeen filed on 06.04.2015 but the same has however found to be filedwithout disclosing the number of the said suit. In view thereof it cannot besaid that the counsel who has submitted the alleged Vakalatnama wasauthorized by him to contest the suit on his behalf. 10.Be that as it may the ex parte judgment and decree could be set 5aside under Order IX Rule 13 of CPC if the ingredients provided thereinare fulfilled. The said provision is relevant for the purpose reads as under: ORDER IX Appearance of parties and consequenceof non appearance …......xxxxxxxxxxxxxxxxxxxxxxxxRule 13.Setting aside decree ex parte againstdefendants. In any case in which a decree is passed exparte against a defendant he may apply to the Court bywhich the decree was passed for an order to set it aside and if he satisfies the Court that the summons was notduly served or that he was prevented by any sufficientcause from appearing when the suit was called on forhearing the Court shall make an order setting aside thedecree as against him upon such terms as to costs payment into Court or otherwise as it thinks fit and shallappoint a day for proceeding with the suit:Provided that where the decree is of such a naturethat it cannot be set aside as against such defendant onlyit may be set aside as against all or any of the otherdefendants also:[Provided further that no Court shall set aside adecree passed ex parte merely on the ground that therehas been an irregularity in the service of summons if it issatisfied that the defendant had notice of the date ofhearing and had sufficient time to appear and answer theplaintiffs claim.][Explanation. Where there has been an appealagainst a decree passed ex parte under this rule and theappeal has been disposed of on any ground other than theground that the appellant has withdrawn the appeal noapplication shall lie under this rule for setting aside the exparte decree.]11.According to the aforesaid provision the Court can set aside an exparte decree only on two grounds firstly when the summons of the suitwas not duly served and secondly when he was prevented by sufficientcause from appearing when the suit was called out. As observed hererinabove the summons of the suit was neither duly served upon theApplicant s husband Bhikham Prasad nor had he authorized any of hiscounsel to contest the suit on his behalf. 12.That apart Defendants No.1 & 2 who were found to be proceeded 6ex parte by the trial Court vide its order dated 05.11.2015 but irrespectiveof their absence it reflects from the order sheets commencing with effectfrom 05.03.016 upto 31.03.2016 the matter was being adjourned fromtime to time as per the request of both the parties. Not only this the matterwas found to be fixed for the pronouncement of the judgment after hearingof oral submissions of the parties. It is therefore surprising for me thathow the matter could be dealt with in such a manner when the defendantswere already proceeded ex parte on 05.11.2015. The matter was thus found to be conducted by the concerned Presiding Officerextremely in a casual manner. 13.Be that as it may despite service of notice of the proceedingsinitiated by the Applicant under Order IX Rule 13 of CPC the Non applicants have failed to appear and therefore the reasons assigned inthe application which are duly supported by an affidavit have thus notbeen controverted by the Non applicant. In view thereof there were noreasons to disbelieve the contention made by the Applicant.14.In view of the aforesaid background the Court below has therefore committed an illegality in dismissing the said application while refusing toset aside the ex parte judgment and decree dated 31.03.2016.15.Consequently the appeal is allowed and the ex parte judgment anddecree delivered on 31.03.2016 in Civil Suit No.56 A 14 is hereby setaside. No order as to costs. Sd JUDGENikita 

Summary: The Court shall always be justified in proceeding ex parte if it is convinced that the defendant or the opposite party despite service of the summons and knowledge of the pendency of the proceedings had chosen to remain absent, but before proceeding ex parte, the Court must advert itself to the legal requirements as provided under Order 5 of the CPC which is the complete code regarding service of the summons on the opposite party as upheld by the High Court of Chhattisgarh through the learned bench led by Justice in the case of   The brief facts of the case are that this appeal has been preferred by the Applicant, who is the widow of the original Defendant No.1 – Bhikham Prasad, under Order 43 Rule 1(d) of Code of Civil Procedure, 1908 questioning the legality and propriety of the order dated 16.08.2019 passed by Fourth Additional District Judge, Durg (C.G.) in M.J.C. No.167/2019, whereby the learned Court below has refused to set aside the ex parte judgment and decree dated 31.03.2016 passed in Civil Suit No.56-A/2014, while rejecting the application filed under Order 9 Rule 13 of CPC. Learned counsel for the Applicant, submitted that, the finding of the Court below rejecting the application filed under Order 9 Rule 13 of CPC by holding that the Applicant has failed to assign any reason for non-appearance of her husband on 05.11.2015 is apparently contrary to law. It is contended further that the Applicant’s husband was not aware regarding the institution of the said suit as the summons of it was neither served upon him nor any counsel was engaged by him. Further contention of him was that since the reasons assigned in the application was not controverted by the Plaintiff/Non-applicant No.1, therefore, under such circumstances, the Court below ought not to have rejected the said application for setting aside the ex parte judgment and decree dated 31.03.2016 passed in C.S. No.56-A/2014. 3. On the other hand, learned counsel appearing for Non-applicant No.1/Plaintiff has supported the order impugned as passed by the Court. After the perusal of the facts and arguments, the Hon’ble Court held, “The Court can set aside an ex parte decree only on two grounds, firstly, when the summons of the suit was not duly served and secondly, when he was prevented by sufficient cause from appearing when the suit was called out. As observed herein above, the summons of the suit was neither duly served upon the Applicant’s husband-Bhikham Prasad nor had he authorized any of his counsel to contest the suit on his behalf. That apart, Defendants No.1 &amp; 2, who were found to be proceeded ex parte by the trial Court vide its order dated 05.11.2015, but irrespective of their absence, it reflects from the order sheets commencing with effect from 05.03.016 up to 31.03.2016, the matter was being adjourned from time to time as per the request of both the parties. In view thereof, there were no reasons to disbelieve the contention made by the Applicant.  In view of the aforesaid background, the Court below has, therefore, committed an illegality in dismissing the said application while refusing to set aside the ex parte judgment and decree dated 31.03.2016. 15. Consequently, the appeal is allowed and the ex parte judgment and decree delivered on 31.03.2016 in Civil Suit No.56-A/14 is hereby set aside.” Click here to read the Judgment