Gujarat High Court
Harshadsinh Arjunsinh Vaghela vs Dhrupadsinh @ Dhrupatsinh Ramdevsinh ... on 8 April, 2025
NEUTRAL CITATION
C/SCA/13659/2023 ORDER DATED: 08/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13659 of 2023
With
CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 13659 of 2023
==========================================================
HARSHADSINH ARJUNSINH VAGHELA & ORS.
Versus
DHRUPADSINH @ DHRUPATSINH RAMDEVSINH VAGHELA & ORS.
==========================================================
Appearance:
MR VIJAY H NANGESH(3981) for the Petitioner(s) No. 1,2,3,4,5,6,7,8
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
RONAK S SHAH(9460) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 08/04/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr. Dipak Dave waives service of notice of rule on behalf of respondent No.1.
2. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"(A) Your Lordships may be pleased to admit and allow this petition;
(B) Your Lordships may be pleased to quash and set aside the impugned order passed by the learned 7th Additional District & Sessions Judge, Ahmedabad (Rural), Ahmedabad in Misc. Civil Appeal No. 14 of 2023 dated 10.07.2023 (Annexure-F) by issuing suitable writ, order or direction in the interest of justice;Page 1 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025
NEUTRAL CITATION C/SCA/13659/2023 ORDER DATED: 08/04/2025 undefined (C) Pending admission, hearing and final disposal of this petition, your Lordships may be pleased to stay the impugned order passed by the learned 7th Additional District & Sessions Judge, Ahmedabad (Rural), Ahmedabad in Misc. Civil Appeal No. 14 of 2023 dated 10.07.2023 (Annexure-F), in the interest of justice;
(D) Any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
3. Heard learned advocate Mr. Vijay H. Nangesh for the petitioners and learned advocate Mr. Dipak Dave for respondent No.1. The presence of other respondents are not required.
4. With the consent of the parties, the matter is taken up for final hearing.
5. The parties will be referred as far as possible as per their original position in the suit.
Short facts of the case 6.0 The present petitioners are the original plaintiffs of Regular Civil Suit No. 12 of 2023 filed against the respondents pending before the Principal Senior Civil Judge, Sanand, Ahmedabad.
6.1 Respondent No.1 herein is original defendant No.3, Page 2 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025 NEUTRAL CITATION C/SCA/13659/2023 ORDER DATED: 08/04/2025 undefined who has filed caveat but alleged to have not served with prior notice of the institution of the said suit.
6.2 The trial Court appears to have issued urgent show cause notice to the defendants in injunction application below Exh.5 vide its order dated 25.01.2023. The process server (Bailiff) went to the residence of defendant No.3 to serve summons of suit/injunction application on 30.01.2023.
6.3 The Bailiff report suggests that defendant No.3 was not found at his residence and his wife has refused to accept the notice in absence of her husband. So, the Bailiff has returned the service of summons/notice to the Court with his report.
6.4 It appears that as none appears for the defendants, the trial Court vide its ex-parte order dated 10.02.2023 allowed the injunction application. It further appears that on noticing the aforesaid order of the trial Court, defendant No.3 has preferred Civil Misc. Appeal No. 14 of 2023 before the appellate Court under Order 43 of CPC.
6.5 After hearing the parties and noticing the fact that summons of suit was not duly served upon respondent No.3, the appellate Court has quashed the order passed by the Page 3 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025 NEUTRAL CITATION C/SCA/13659/2023 ORDER DATED: 08/04/2025 undefined trial Court and remanded the matter back to the trial Court for fresh adjudication of injunction application on its merit albeit, after giving opportunity of hearing to all the parties concerned.
6.6 Being aggrieved with the aforesaid order passed by the appellate Court, the original plaintiffs have preferred the present writ application.
Submission of the petitioners-plaintiffs
7. Learned advocate Mr. Vijay Nangesh for the petitioners has vehemently submitted that the appellate Court has erroneously believed that there is no service of summons upon defendants more particularly defendant No.3, thereby, committed error while allowing the appeal. He would further submit that Bailiff went to the place of defendant No.3, wherein wife of defendant No.3 has refused to accept the summons, in that circumstances, refusal of summons by the family member of defendant No.3 would be considered as a valid service of notice upon defendant No.3.
7.1 Learned advocate Mr. Nangesh would further submit that when defendant No.3 has filed caveat, he was well aware about the institution of the suit proceedings and tried Page 4 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025 NEUTRAL CITATION C/SCA/13659/2023 ORDER DATED: 08/04/2025 undefined to delay the proceedings, he has chosen not to appear before the trial Court but having found an injunction order against him, chooses to file appeal, which is wrongly allowed by the appellate Court.
7.2 Learned advocate Mr. Nangesh would further submit that when the Bailiff has served notice upon family member of defendant No.3 as per Order 5 rule 15 of CPC, permissible mode of service of summons and having refused such service by the family member, it would amount to valid service of notice upon defendant No.3.
7.3 To buttress his argument, learned advocate Mr. Nangesh for the petitioners would refer and rely upon the decision of the Hon'ble Apex Court in the case of Swaraj Tractors Division, Punjab Vs. Raghbir Singh reported in (2004) 13 SCC 50 (relied upon Para-6).
7.4 Making the above submission, learned advocate Mr. Nangesh would request this Court to allow the present writ application.
Submission of respondent No.1- defendant No.3
8. Per contra, learned advocate Mr. Dipak Dave for Page 5 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025 NEUTRAL CITATION C/SCA/13659/2023 ORDER DATED: 08/04/2025 undefined respondent No.1- defendant No.3 has vehemently opposed the present writ application, inter-alia contending that in fact there is no service of summons received by the defendant No.3 either regular mode or through registered post as a caveator, undisputedly had filed caveat. He would further submit that the report of Bailiff is very much clear on record to suggest that wife of defendant No.3 has refused to accept the summons, thereby, Bailiff has returned the process of service of summons to the Court concerned.
8.1 Learned advocate Mr. Dave would further submit that as per Order 5 rule 15 of CPC, an inquiry has to be undertaken by the Bailiff before service of summons upon family members of defendant No.3 that there is no likelihood of defendant No.3 being found at the residence within reasonable time and then-after, he could have served the service of summons upon wife of defendant No.3.
8.2 Learned advocate Mr. Dave would further submit that no such satisfaction of service of summons have taken place by the Bailiff and or any inquiry undertaken by him and on first instance itself he has returned the summons to the Court which would not be a valid service upon defendant No.3.
8.3 Learned advocate Mr. Dave would rely upon Section Page 6 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025 NEUTRAL CITATION C/SCA/13659/2023 ORDER DATED: 08/04/2025 undefined 148A of CPC, whereby, he would submit that in any case where there is caveat filed by defendant, an advance intimation is required to be given from plaintiff before moving the Court for any urgent order. No such exercise has been taken place by the plaintiffs at the relevant point of time, which would be also a factor to be considered by this Court while examining the present writ application.
8.4 To buttress his argument, learned advocate Mr. Dipak Dave for respondent No.1 would refer and rely upon the decision of Division Bench of Punjab and Haryana High Court in the case of Charanjit Singh Mann Vs. Neelam Mann reported in AIR 2006 (P & H) 201 (relied upon Para-21).
8.5 Making the above, submission learned advocate Mr. Dave would request this Court to reject the present writ application.
9. No other and further submissions have been made by the learned advocate for the respective parties.
ANALYSIS
10. The short controversy which arise for consideration of this Court as to whether there was a valid service of Page 7 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025 NEUTRAL CITATION C/SCA/13659/2023 ORDER DATED: 08/04/2025 undefined summons/ notice of suit/injunction application filed by the plaintiffs upon defendant No.3 as per provision of CPC or not? And any gross error and or jurisdictional error committed by appellate Court while remanding the matter back to trial Court for fresh adjudication of injunction application?
11. The facts are not much in dispute that defendant No.3 has filed caveat and it was within the knowledge of the plaintiffs that there was caveat filed by the defendant No.3 but they have chosen not to serve in advance intimation of service of copy of plaint with its annexures upon defendant No.3.
12. Even, summons which was issued by the trial Court was served through Bailiff and as per his report, when the defendant No.3 was not found at his residence then, bailiff had tried to serve such summons upon wife of defendant No.3, which was refused by her to accept it unless her husband i.e. defendant No.3 present. So, Bailiff has returned summons to the Court concerned without affecting any service of summons upon defendant No.3. The trial Court appears to have not observed the aforesaid fact rather than observing that defendants are duly served but chosen not to appear which according to me contrary to record.
Page 8 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025NEUTRAL CITATION C/SCA/13659/2023 ORDER DATED: 08/04/2025 undefined
13. At this stage, it is apt to refer the provisions of Order 5 rule 15 of CPC, which reads as under :-
"ORDER V-ISSUE AND SERVICE OF SUMMONS
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 his 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."
14. The plain reading of the aforesaid provision would suggest that when the process server i.e. Bailiff went to the place of defendant No.3 for service of summons, if he is not found at his residence, preliminary inquiry about likelihood of return of defendant is to be undertaken by the Bailiff and ultimately if he is satisfied that there is no likelihood of defendant being found at his residence within reasonable time, he may serve summons upon any elderly family members male or female who is residing with the family. It is clear from the record that no such inquiry has been undertaken by the Bailiff and having not recorded any such fact in his report dated 30.01.2023. So, defendant No.3 could not be treated as served within meaning of Order 5 Rule 15 of CPC.
Page 9 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025NEUTRAL CITATION C/SCA/13659/2023 ORDER DATED: 08/04/2025 undefined
15. So far as the judgement which has been cited and relied by the learned advocate Mr. Nangesh for the petitioner in the case of Swaraj Tractors (supra), it was a case where summons was duly received by the wife of the defendant which is considered to be a valid service under Order 5 rule 15 of CPC. The facts of the aforesaid case is totally opposite to the present one. In the case on hand, wife of defendant No.3 has refused to accept summons which would not amount to valid service upon defendant No.3 more particularly when bailiff has not undertaken reasonable inquiry and satisfied himself that there is no likelihood of defendant No.3 being found at his home within reasonable time.
16. The judgment which has been cited and relied by the learned advocate Mr. Dipak Dave for respondent No.1 in the case of Charanjit Singh Mann (supra) has discussed in detail the provisions of Order 5 rule 15 of CPC, thereby, observed as under :-
"21. On the other hand, Shri Aggarwal, learned Senior Counsel for the respondent, on the strength of Order 5 Rule 15 C.P.C., contended that even if the appellant's assertion that he had gone abroad on 13.6.2001 or that he was never served at his Mohali address, are assumed to be correct, yet, the first notice sent at the appellant's permanent address and served upon his father, should be taken as sufficient service upon the appellant. It was argued that since the appellant was not found at his permanent address, he had admittedly gone abroad, and his father having refused to inform as to when the appellant would return, there Page 10 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025 NEUTRAL CITATION C/SCA/13659/2023 ORDER DATED: 08/04/2025 undefined was no likelihood of his being found at the address within a reasonable time. In these circumstances, the service of summonss upon his father is a valid service in the eyes of law. Shri Aggarwal also made a pointed reference to the second proviso to Order 9 Rule 13 C.P.C. according to which a court shall not set aside an ex pane decree merely on the ground that there has been an irregularity in the service of summonss, if it is satisfied that the party had notice of the date of hearing and had sufficient time to appear and answer the opposite party's claim.
22. There can be no quarrel that service can be made under Order 5 Rule 15 C.P.C. on an adult member (male or female) residing with a party to the lis subject to, however, fulfillment of two conditions, namely, (i) the party upon which service is to be effected resides at that address; and (ii) there is no likelihood of his being found within a reasonable time. The expression reasonable time shall vary from case to case. There can, however, be no doubt that before effecting service on an adult member of a defendant's family, there has to be satisfaction regarding likelihood of his non-availability at his residence within a reasonable time.
23. Testing the yardstick of "within reasonable time" in the facts and circumstances of the present case, it is not denied that: (i) the appellant is a permanent resident of Ambala Cantt. and summonss were sent to him on that address only; (ii) the appellant was not found at his residence and his father informed the process server that the appellant had gone abroad after re-marrying; (iii) the appellant's father did not disclose as to how soon the appellant would come back from abroad; and (iv) the appellant's father did not commit that he will definitely inform the appellant regarding filing of the appeal or the interim order passed by the Court though he assured in this regard. In these peculiar facts and circumstances and having regard to the nature of litigation, it can be safely inferred that the summonss could not have been served upon the appellant personally within a reasonable time, therefore, service of notice upon the appellant's father, who admittedly received the summonss, squarely falls within the safeguards of Rule 15 of Order 5 C.P.C. and has to be treated as a valid service upon the appellant."
(emphasis supplied) Page 11 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025 NEUTRAL CITATION C/SCA/13659/2023 ORDER DATED: 08/04/2025 undefined
17. Thus, in view of the aforesaid facts and position of law, there was no valid service of summons upon defendant No.3, thereby, the appellate Court has correctly examined the aforesaid aspect of the matter and on noticing the aforesaid fact has interfered with the impugned order passed by the trial Court. So, it has correctly set aside it on the ground that there is a violation of principle of natural justice and there is no valid service of summons upon defendants.
18. Moreover, this Court while exercising its power under Article 227 of the Constitution of India, is not required to correct every error of law either committed by the appellate Court or the trial Court as the case may be, unless there is a gross error of law or jurisdictional error committed which is none in the present case [See : in the case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (more particularly para-6 & 7)and in the case of Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (more particularly Para 15 & 16)].
CONCLUSION
19. The upshot of the aforesaid discussion, observation and reasons, this Court finds that there is no valid service of summons/notice upon defendant No.3 as per provision of CPC and as such there is neither any gross error nor any Page 12 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025 NEUTRAL CITATION C/SCA/13659/2023 ORDER DATED: 08/04/2025 undefined jurisdictional error committed by appellate Court while remanding the matter back to trial Court for fresh adjudication of the injunction application.
20. Thus, in view of the aforesaid, I do not find any merit in the present writ application, which requires to be dismissed, is hereby dismissed. Rule is discharged. Interim relief granted earlier, if any, stands vacated forthwith.
21. It is open for the parties to request the trial Court for expediting the hearing of the injunction application which is restored back on its file, having remanded the matter back to the trial Court by the order impugned of the appellate Court. If such request will be made, the same shall be considered by the trial Court, after giving opportunity of hearing to all the parties concerned, may decide the injunction application at the earliest without being influenced by any of its observation so made in the order impugned before the appellate Court as well as made by this Court.
22. As a sequel, Civil Application would not survive and disposed of accordingly..
(MAULIK J.SHELAT,J) SALIM/ Page 13 of 13 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:19:14 IST 2025