HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved. Case :- WRIT - C No. - 42106 of 2007 Petitioner :- Kishore Kumar Arora Respondent :- Harvindar Singh & Others Petitioner Counsel :- Paramatma Rai,A.B. Saran Respondent Counsel :- Madhur Prakash,Sc CONNECTED WITH Case :- WRIT - C No. - 42113 of 2007 Petitioner :- Kishore Kumar Arora Respondent :- Harvindar Singh & Others Petitioner Counsel :- Paramatma Rai Respondent Counsel :- Madhur Prakash AND Case :- WRIT - C No. - 42110 of 2007 Petitioner :- Kishore Kumar Arora Respondent :- Harvindar Singh & Others Petitioner Counsel :- Paramatma Rai,A.B. Saran Respondent Counsel :- Madhur Prakash,Sc Hon'ble Sunil Hali,J.
All these petitions raise common question of law and fact hence they are being dealt together and decided by a common order.
Three separate suits for specific performance bearing No. 342 of 2003, 343 of 2003 and 344 of 2003 was filed by the respondents no. 1 & 2 before the Court of Civil Judge (SD), Jhansi. It is contended in the said suit that by an agreement to sale, petitioner/defendant had agreed to sell the property in the shape of three portion of the land of the House (total measuring 2040 Sq feet) , 1455 sq feet for consideration of Rs. 50,000/-, 2040 sq. feet for consideration of Rs. 50,000/- and 2829 sq feet for consideration of Rs. 1,00,000/- respectively. Stipulation in the agreement enjoins upon the defendant to execute the sale deed in favour of the plaintiff and on its failure to do so the plaintiff would be well within his right to enforce the agreement for executing the sale deed in his favour. After filing of the suit, notices/summons were issued to the petitioner which is said to have been served on the wife of the petitioner on 23.10.2003. On his failure to appear, despite service effected on his wife an ex-parte decree was passed on 18.3.2004. By virtue of the aforesaid ex-parte decree all the three suits were allowed. It is pertinent to mention here that the petitioner is said to have acquired the knowledge of the ex-parte decree on 18.1.2006 when he was informed by his brother about the filing of the suits and same been decreed by the Court. He took steps to file an application for setting aside the ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure 1908 accompanied with application under Section 5 of the Limitation Act for seeking condonation of delay in filing the said application.
In his application for setting aside the ex-parte decree petitioner had specifically contended that no notice was served on him. He took following pleas in his application:-
(a) That the petitioner had shifted to House No. 27 and was living with his mother and the notice was served at House No. 26.
(b) That he had fallen apart from his wife as a result of which any service affected on her was not communicated to the petitioner.
The objection filed by the respondents was that the petitioner had all alone been watching the proceedings in the case and it is wrong to state that he acquired the knowledge in the year 2006. The petitioner was all along living with his wife as such it is wrong statement of fact that he had fallen apart from his wife. The wife of the petitioner had filed a suit bearing No. 259 of 2003 which was listed before the Court on 12.12.2003. On the said date the suits filed by the plaintiffs/respondents were also listed in the same court as such he had sufficient knowledge about the pendency of the suits.
The application was considered by the learned Trial Court and the same was rejected vide order dated 27.10.2006. Trial Court in its finding did not accept the explanation of the petitioner that he had not received the summons. Taking recourse to the Order V Rule 15 of the Code, the Trial Court held that due to non availability of the petitioner at his home address summons were served on the adult member of the family who happens to be his wife. This in law would be sufficient compliance of the Order V Rule 15 of the Code and it shall always be presumed that the summons have been served on him. The Court also did not accept the explanation submitted by the petitioner that he was living separately from his wife. In this behalf, petitioner was required to file affidavit of the wife and the mother which he had failed to do. The application was as such dismissed. The appeal filed against the order dated 27.10.2006 by the petitioner has also been dismissed by the appellate Court vide order dated 10.8.2007. It is under these circumstances the present petitions have been filed.
The short question involved in these petitions is as to whether the service has been effected on the petitioner after the filing of the suit.
It is incumbent upon the Court to serve a notice on the other side. Various contingencies and situations are enumerated under the Code indicating the manner in which service has to be affected on the other side. One of the mode for effecting service is provided by Order V Rule 15 of the Code which is quoted below:-
[15. Where service may be on an adult member of defendant's family Where in a 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.] Rule provides that in case the defendant is absenct from his residence at the time when the service of the summons is sought to be effected and it is not possible to find him within reasonable time service of summons on his behalf can be made on any adult member of the family who is residing with him. In order to comply with the requirement of the rule following two conditions are required to be satisfied; (a) defendant was not available at this residence at the time of service of summons; (b) and there is no likelihood of his being found within reasonable time; and (c) that there is no authorised agent to accept the summons.
Principal rule is that notice has to be served on the defendant personally. However, there are exception when it may not be possible to do so.
Rule 15 is one of the exception to the said rule. The Court before assuming that the summons have been served is required to satisfy itself that the following conditions have been complied with:-
(a) that before service of summons on the adult member of the family there has to be an effort on the part of the process server to serve the same on the defendant; (b) that he must record his satisfaction that the defendant is not likely to be found at his residence within reasonable time and (c) that there is no authorised agent to receive the summons on behalf of the defendants.
If the aforesaid conditions are not satisfied it shall be presumed that the rule has not been complied with. Any service without complying with the aforesaid provisions, even if notice has been served on the adult member of the family would not be considered to be a service within the meaning of the rule.
Applying this principle in the present case, it be seen that the notice was issued on the wife of the petitioner on 23.10.2003. There is no report of the process server that despite his efforts he could not locate the defendant. He has also not recorded any satisfaction that there was no likelihood of the defendant been found at h is residence within reasonable time.
No effort is said to have been made by the process server to serve the defendant nor any report in this behalf has been submitted that the defendant is not likely to be found at his residence within reasonable time. As a matter of fact, process server should have made one more attempt to find out whether the defendant can be served personally. The word used in the Rule indicates that the report supported by an effort on the part of the process server indicating that there is no likelihood of the defendant been present at his residence within reasonable time had to be filed. While recording their findings both the courts below have overlooked this aspect of the matter. It was mandatory on the part of the Courts to have examined this aspect of the issue.
What was required to be done by the process server was to make an effort to effect the personal service of notice on the defendant. All that has been done is that he has served a notice on the wife of the petitioner without making any efforts to serve the defendant. Admittedly, no inference can be drawn that the summons were served on the defendants as there was no sufficient compliance with the requirement of Order 5 Rule 15 of the Code. Process server in this case went to the house of the defendant only on one occasion and did not visit again to find out whether the defendant would be available at some other time. Acceptance of notice by the wife cannot be construed as service on the defendant in these circumstances. (Ravi Dutt Vs Chunni Lal, AIR 2004 Delhi 405).
"The facts of the present case show that the process server went on only one occasion and did not go again to find out if the Appellant would be available on some other date or at some other time. In any case, the summons was not affixed even on that occasion. There is a ring of truth in what learned counsel for the Appellant alleges that service on his client was not effected or if effected, it was not proper."
Rule 15 of Order 5 of the Code empowers the process server to serve the summons on any adult member of the family provided at the time of service the defendant is absent from his residence. Before effecting any such service he is required to make an effort to find out the defendant so as to serve him personally. In absence of any such effort being made mere non availability of the defendant in his home and the service on the adult member of the family would not be deemed to be effective service under Rule 15. Process server did not even bother to make any effort to effect personal service on the defendant and also did not even bother to record on the summons that there was no agent available and that there was no likelihood of defendant been found within reasonable time. It cannot be said that service was effected.
Service of summons in a suit is a very important part of procedure and the law requires that the person who is empowered to effect service of such summons must discharge his obligation meticulously. The Code itself provides that as for as possible the service must be personal. It has to be shown to the complete satisfaction of the Court that the defendant could not be found and has no agent empowered to accept service of the summons on his behalf, before service is made on adult member of his family who is living with him. There appears to be no evidence to show that there was any difficulty in finding the petitioner. This essential feature of the Rule stands completely ignored by both the courts below.
In my view, in the facts and circumstances of the case, it clearly emerges that no service was effected on the petitioner. He did not have knowledge of the pendency of the suit as such h is application for condoning the delay in filing the application as also the application under Order 9 Rule 13 of the Code is required to be allowed.
I, therefore, allow these petitions. The orders dated 10.8.2007 & 27.10.2006 are hereby quashed. Consequently the ex-parte decree passed by the court below is also set aside. Application filed under Order 9 Rule 13 of the code along with delay condonation application filed by the petitioner/appellant stands allowed. Defendant is permitted to file his written statement before the Court and the trial court shall thereafter proceed to decide the suit on merits after hearing the parties in accordance with law.
Order Date :- 16.12.2011
RKS/ (Justice Sunil Hali)