Bombay High Court
Dr. Madhav Vishwanath ... vs M/S. Bendale Brothers on 7 August, 2018
Bench: Mridula Bhatkar
902.WP4217_2018.doc
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4217 OF 2018
Dr. Madhav Vishwanath Dawalbhakta (Decd)
through LRs. Dr. Nitin M. Dawalbhakta & Ors. ...Petitioners
Versus
M/s. Bendale Brothers ...Respondent
Mr. Nikhil Sakhardande i/b. Mr. Pralhad D. Paranjape a/w. Shubhra
Paranjape, Advocate for the petitioners.
Mr. Ashok B. Tajane, Advocate for the respondent.
CORAM: MRS.MRIDULA BHATKAR, J.
DATE: 7th August, 2018.
JUDGMENT:
Rule. Rule made returnable forthwith. By consent of both the
parties, the Writ Petition is heard finally at the stage of admission.
2. This Writ Petition is directed against the order dated 13 th
November, 2017 passed by the District Judge-7, Pune for setting
aside the ex-parte order for want of proper service on the defendant
in the suit. For the sake of convenience, in order to avoid confusion,
the parties are referred to by their original status.
3. The petitioners are the original plaintiffs, who have filed the suit
for specific performance against the respondent/defendant on the
basis of the Agreement dated 4th April, 1996. In Special Civil Suit No.
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1491 of 2009, the Court issued summons on the defendant.
However, the defendant did not appear though summons were duly
served. The trial Court decreed the suit exparte on 8 th November,
2011 after considering the affidavit-in-chief of the plaintiff and the
documents on record. Nearly two years after, the respondent filed an
Application for setting aside the said ex-parte order along with the
Application for condonation of delay. The delay was condoned by the
trial Court and the Application was numbered as M.A. 684 of 2013
which was contested by the plaintiffs and the trial Court accepted the
case of the plaintiff that the summons though was served on the
defendant, he failed to appear and as it was good service, the
Application was rejected by order dated 16 th February, 2015. Appeal
No. 340 of 2015 was preferred by the respondent/defendant and
after hearing both the sides, the Appellate Court allowed the said
Appeal with cost and quashed and set aside the order of Small
Causes Court, Pune and directed the respondent to file the written
statement. The plaintiffs have challenged the said order in Appeal.
4. The learned counsel for the petitioners has submitted that the
order of the trial Court is well reasoned in which the trial Court has
held that the defendant was duly served by the summons issued by
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the Court, however, he failed to appear before the Court and
therefore, the Application to set aside the exparte decree was
rejected. The learned counsel pointed out the affidavit of the case
and submitted that the Court bailiff has served the summons twice on
the address given by the defendant himself. He submitted that the
learned District Judge gave wrong finding on fact and as well as on
law. The learned Judge has stated that the bailiff has reported that
the respondent/defendant was not residing on the given address
which is factually wrong, as the bailiff remark on both the occasion
was "he had left the premises". He further pointed out that the
learned District Judge gave wrong reasoning that the plaintiffs did not
prove that the newspaper was affixed like summons under Order 5
Rule 20 of the Code of Civil Procedure on the conspicuous place of
the last known address, it cannot be construed to be a valid service.
The learned counsel submitted that this erroneous reasoning and the
order of the learned District Judge should go and the order passed
by the learned trial Judge is to be restored. He has submitted that so
far as service of summons is concerned, there was satisfactory
compliance of Order 5 Rule 20 of the Code of Civil Procedure. The
learned counsel has further submitted that the order passing ex-parte
decree not necessarily to be set aside, as a routine. When after
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considering the evidence of the plaintiffs and the documents on
record, the judgment is delivered, then it is as good as a judgment
on merits. In support of his submissions, the learned counsel relied
on the following judgments of the Hon'ble Supreme Court:
(i) International Woollen Mills vs. Standard Wool (U.K.)
Ltd., reported in (2001) 5 SCC 265.
(ii) On the point of substitute service under Rule 20,
Commissioner of Income-tax, Punjab vs. Daulat Ram
Khanna, reported in AIR 1967 SC 1552.
(iii) Neerja Realtors Pvt. Ltd. vs. Janglu (Dead) through
LRs., reported in (2018) 2 SCC 649.
5. The learned counsel for the respondent, while supporting the
order passed by the learned District Judge, has submitted that the
respondent/defendant was not staying at the address of Pushkar
Apartment or Pushkar Housing Society as shown in the summons,
which was issued on 3rd December, 2010 but he was staying at the
present address, i.e., 25/26 A Building, Patil Heritage, Bhosale Nagar
and therefore, he was never served with summons and therefore, he
could not attend the said Civil Suit. He had knowledge of the exparte
decree when some mediation talks were going on between him and
plaintiffs in the criminal Revision Application filed by the defendant
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before Jalgaon and he, therefore, immediately filed the Application
for setting aside the ex-parte decree. The delay was condoned and
the said exparte decree was set aside by the District Judge. He has
submitted that the defendant never avoided to accept the service and
the plaintiffs did not attempt to obtain the true and correct address of
the defendant. He submitted that the plaintiffs have failed to show
compliance of Order 5 Rule 20 of the Code of Civil Procedure. The
learned counsel has submitted that it is binding on the Court to
record its satisfaction to believe that there is avoidance of service for
some reasons, the summons was not served; If it is not, then the
trial Court cannot pass the order of substituted service. In this case,
the order of substituted service was casually passed, which should
not have been. In support of his submission, the learned counsel
relied on the following decisions:
(i) Judgment of Bombay High Court in the case of Lal
Mohammed Mestry vs. Abdul Sakur Abdul Gafoor,
reported in ALL MR 2002 4 420.
(ii) Judgment of Bombay High Court in the case of
Shashikant s/o. Eknath Choudhari vs. Maharashtra
State Electricity Distribution Co. Ltd., reported in
Lex(Bom) 2015 1 319.
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(iii) Judgment of Bombay High Court Bench at Nagpur in the
case of Ramesh Jagannath Ingole vs. Shakunbai
Ganesh Ingole, reported in 2015(4) Mh. L.J. 787.
6. In the present suit, the respondent/defendant has made an
Application for setting aside the exparte order on the ground that
there is no good service. Under Rule 13, if the Court is satisfied that
the summons was not duly served or that he was prevented by any
sufficient cause from appearing when the suit was called on for
hearing, the Court shall make the order of setting aside the decree.
Thus, the satisfaction of the Court should be on the point that the
summons was not duly served. For the purpose of satisfaction, one
needs to see the proper compliance of service of summons under
Order 5 Rule 17 and Rule 20 of the Code of Civil Procedure.
7. When a suit is filed by the plaintiff, respondent should be
served. Various modes of service including through bailiff are laid
down in Order 5. Rule 17 of Order 5 states the procedure of service
when the defendant refused to accept service or cannot be found.
Under Rule 19, the Court may call upon the serving officer, i.e., bailiff
to lead evidence on the point of service. In the case of Shashikant
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s/o. Eknath Choudhari (supra), the learned Single Judge of this
Court has held that if it is necessary, then the trial Court to examine
the serving officer on oath regarding the service of summons on the
defendant. That is one method of proving the service.
8. In the case of Ramesh Jagannath Ingole (supra), the Single
Judge has held that it is necessary for the trial Court to record the
satisfaction about the steps taken by the plaintiff for issuance of
service of Court summons before granting permission for service
under Order 5 Rule 20 of CPC and it is not to be granted in
mechanical manner.
9. Order 5 Rule 20 speaks about "substituted service"
20. Substituted services
(1) Where the Court is satisfied that there is reason to
believe that the defendant is keeping out of the way for the
purpose of avoiding service, or that for any other reason the
summons cannot be served in the ordinary way, the Court
shall order the summons to be served by affixing a copy
thereof in some conspicuous place in the Court-house, and
also upon some conspicuous part of the house(if any) in
which the defendant is known to have last resided or
carried on business or personally worked for gain, or in
such other manner as the Court thinks fit.
[(1A) Where the Court acting under sub-rule(1) orders
service by an advertisement in a newspaper, the
newspaper shall be a daily newspaper circulating in the
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locality in which the defendant is last known to have
actually and voluntarily resided, carried on business or
personally worked for gain.]
(2) Effect of substituted service-Service substituted by order
of the Court shall be as effectual as if it had been made on
the defendant personally.
(3) Where service substituted, time for appearance to he
fixed -Where service is substituted by order of the Court,
the Court shall fix such time for the appearance of the
defendant as the case may require.
[20A. Service of summons by post: Repealed by the Code
of Civil Procedure (Amendment) Act, w.e.f. 1st. February,
1977]
10. Thus, the court should be satisfied that either the defendant is
deliberately avoiding the service, so the order of substituted service
can be passed or if the Court is satisfied that for any other reason,
the summons cannot be served in ordinary way, then the order of
substituted service can be granted.
11. What is substituted service?
(i) By affixing the copy in some conspicuous place in Court-
house upon some conspicuous part of the house(if any) in
which the defendant is known to have last resided or carried on
business;
(ii) personally worked for gain;
(iii) or in such other manner as the Court thinks fit.
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12. Thus, in sub-rule (i) and (ii), the substituted service means
fixing the copies of the summons on different place as mentioned in
the Rule. However, the sub-rule(iii) gives further option that the
summons can be served in such other manner as the Court thinks fit.
Thus, the manner which the Court opts for should be akin to the
earlier mode of service, which is mentioned in the Rule. For this, the
Court can take into account the modern ways of service which are
available due to internet connection. It can be served also by courier
or by email or by whatsapp etc. The Court should be satisfied about
such service. Rule 1A gives a specific option to the Court to serve
the defendant by an advertisement or notice in the newspaper which
should be daily newspaper circulated in the locality whether it was
known to have actually or voluntarily residing or carrying out
business. The phrase used in Rule 1A "where the Court acting under
sub-rule(1)" contemplates when the Court passes the order of
service by publication, in fact the court is using the powers by
choosing a mode which is "such other manner as the Court thinks fit",
as mentioned in sub-rule (1) of Rule 20 Order 5. The finding given
by the learned trial Court Judge in the present case that after
publication in the newspaper, the copy of the newspaper is to be
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affixed at the conspicuous place or at the residence, is incorrect. No
such pasting of the newspaper is required.
13. The interpretation of Section 1A by the learned counsel Mr.
Sakhardande that it is a continuation of Rule 20(1) and while passing
the order of service by publication in the newspaper, the Court thinks
that it is the other manner which is mentioned in last clause of Rule
1, is found correct, as it is also supported in the case of
Commissioner of Income-tax, Punjab (supra), wherein the Hon'ble
Supreme Court while interpreting Order 5 Rule 20(1) has held as
follows:
"It seems to us that the last ten words in sub-rule (1) of rule
20, do confer a discretion on the Court to adopt any other
manner of service. The sub-rule prescribes one manner
which the Court may follow and this manner consists of two
acts; (1) affixing a copy of the summons in the court-house,
and (2) affixing it in some conspicuous part of the residential
house or the business premises of the defendant. If the High
Court were right we would expect that the word "also" would
be repeated and inserted between the word "or" and "in" in
the last ten words. The alternative manner which the Court
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decides to adopt for serving must of course be such as gives
notice to the person to be served."
14. On the point of setting aside of ex-parte decree, the Hon'ble
Supreme Court, in the case of International Woollen Mills (supra),
has held that it is possible even though the defendant has not
entered evidence, the plaintiff may prove its case through oral and
documentary evidence. If after consideration of oral and/or
documentary evidence, an exparte decree is passed, it would be a
decree on merits.
15. In the case of Lal Mohammed Mestry (supra), the learned
Single Judge of this Court has held that substituted service cannot be
taken as idle formality by the trial Court and the service of summons
under Order 5 Rule 20 cannot be allowed as matter of course or in
casual manner and in absence of service of summons, if the suit is
decided ex-parte and if it is brought to the notice of the Court
passing decree, then it would be duty of the Court to exercise
jurisdiction under Order 9 Rule 13 of the Code of Civil Procedure.
16. Thus, the Court can also go for service of publication and once
it is published, then sub-rule (2) of Rule 20 will be attracted, which
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states the effect of substituted service, i.e., substituted service by
order of Court shall be effectual as if it was made on the defendant
personally. Thus, it lays down the deeming fiction. However, the
plaintiff can ask for substituted service after complying with the
requirement of Order 5 Rule 17 of the Code of Civil Procedure. If a
person refuses to give the acknowledgment and if at all with all due
and reasonable diligence, the defendant is not found, then it is
mandatory on the service officer to affix the copy of the summons on
the outer door or some other conspicuous part of the house where
the defendant ordinarily resides.
17. In the case of Neerja Realtors Pvt. Ltd. (supra), a suit was
filed by the appellant for specific performance. On two occasions,
the summons was returned unserved and thereafter bailiff submitted
the report stating that when he went to serve the defendant, he was
informed by the persons residing in the village that the defendant had
left the premises two years earlier and was residing elsewhere. The
summons were returned since the defendant was not residing at the
address given therein. Thus, the facts in the case of Neerja
Realtors Pvt. Ltd. and the facts of the present case are identical. In
the case in hand also, the bailiff has submitted the report twice that
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the person has left the premises of Pushkar Apartment or Pushkar
Society. In Neerja Realtors Pvt. Ltd.'s case also, the order was
passed for substituted service by publication. The Supreme Court
held as follows:
"The Court must apply its mind to the requirements of Order 5
Rule 20 and its order must indicate due consideration of the
provisions contained in it.
The submission that under Order 5 Rule 20, it was not
necessary to affix a copy of the summons at the Court house
and at the house where the defendant is known to have last
resided, once the Court had directed service by publication in
the newspaper really begs the question. There was a clear
breach of the procedure prescribed in Order 5 Rule 17 even
antecedent thereto. Besides, the order of the Court does not
indicate due application of mind to the requirement of the
satisfaction prescribed in the provision. The High Court was,
in these circumstances, justified in coming to the conclusion
that the exparte judgment and order in the suit for specific
performance was liable to be set aside."
18. Order IX, R.13 CPC read as under:
"Setting aside decree ex-parte against defendant : In any
case in which a decree is passed ex-parte against a defendant,
he may apply to the Court by which the decree was passed for
an order to set it aside; and if he satisfies the Court that the
summons was not duly served, or that he was prevented by
any sufficient cause from appearing when the suit was called
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on for hearing, the Court shall make an order setting aside the
decree as against him upon such terms as to costs, payment
into Court or otherwise as it thinks fit, and shall appoint a day
for proceeding with the suit;
Provided that where the decree is of such a natuer that it
cannot be set aside as against such defendant only it may be
set aside as against all or any of the other defendants also;
Provided further that no Court shall set aside a decree passed
ex-parte merely on the ground that there has been an
irregularity in the service of summons, if it is satisfied that the
defendant had notice of the date of hearing and had sufficient
time to appear and answer the plaintiff's claim."
19. Under Order IX Rule 13 while setting aside the decree, if the
party satisfies the Court that the summons was duly served or that
the party was prevented by any sufficient cause from appearing, the
Court shall pass the order of setting aside the decree. Thus, Order
IX Rule 13 contemplates the true two situations.
20. For exparte order, two remedies are available -
(i) To file First Appeal challenging the exparte decree;
(ii) to file an Application for setting aside exparte order under
Order 9 Rule 13.
21. The defendant can file both the proceedings simultaneously,
however, if the Appeal is dismissed, then the exparte decree will
merge with the order of Appellate Court and the Application under
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Order 9 Rule 13 will not be maintainable. If the Application under
Order 9 Rule 13 is dismissed, then the order can be challenged in
Appeal under Order 43 Rule 1. But if the Appeal is dismissed, then it
cannot be challenged in First Appeal under section 96 (Bhanu
Kumar Jain vs. Archana Kumar, reported in (2005) 1 SCC 787).
Thus, when there is no proper service, then the ex-parte decree and
judgment is required to be set aside.
22. Under Order 9 Rule 13, the Court is to be satisfied that the
summons was not duly served means there is no proper legal
service. In ordinary course, the service contemplated under Order 5
Rule 17 and under Order 5 Rule 20 if is complied with, then
summons is to be said duly served. However, under some
circumstances, though the procedure laid down by law is followed;
and yet the defendant if successfully points out that he could not
have the knowledge of filing of proceedings by the plaintiff because
of certain factual impossibilities, then the Court has to give correct
meaning to the word "duly". Under Order IX Rule 13, "Due service" is
not always substituted service, but service which has been effective
in bringing the claim to the knowledge of defendant. The Judicial
Dictionary, 12th Edition explains that the word "duly" is very significant
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and excludes any arbitrary exercise of power is very significant and it
excludes any arbitrary exercise of power.
23. The service is neither an empty formality nor procedural ritual
but the soul of the service is to have the knowledge of the
proceedings to the defendant or the contesting party. Therefore,
there may be a service laid down as per the procedure, however, still
there is no communication of the proceedings to the other party and,
therefore, the knowledge is absent. Thus, satisfaction based on
instances of the compliance of the proceedings as a mere formality
cannot be a correct approach to interpret the principle behind the
service. The deeming fiction is created in law to fill up the gap where
the procedural law falls short. By accepting that the substituted
service is deemed to be a good service, then passing exparte decree
is a correct legal step taken by the Court as per the procedure.
However, the moment the defendant acquires the knowledge of the
proceedings and he approaches the Court and the fact is brought
before the Court that he really never had actual real knowledge, then
even though there is a procedural compliance by the plaintiff, the
Court has to take realistic and just view and not to limit itself in the
procedural wrangles. In the present case, taking into account the
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fact that he was beyond communication and unapproachable by
either service under Order 5 Rule 17 or Order 5 Rule 20, the ex-parte
decree needs to be set aside. No doubt the defendant, i.e.,
respondent should have intimated the correct address or changed
address in the criminal proceedings, however, the Court needs to set
aside the said exparte order with cost.
24. I confirm the order dated 13th November, 2017 passed by the
District Judge-7, Pune in Miscellaneous Civil Appeal No. 340 of 2015
setting aside the ex-parte order passed in Special Civil Suit No. 1491
of 2009 dated 8th November, 2011 subject to payment of cost of
Rs.30,000/-. The Special Civil Suit No. 1491 of 2009 is restored to
its original file. I am informed that the defendant has filed written
statement. The trial Court to proceed with the issues and the plaintiff
to file affidavit-in-chief. The trial Court is directed to try and decide
the suit on or before 31st December, 2018.
25. Writ Petition is dismissed.
(MRIDULA BHATKAR, J.)
Digitally
signed by
Vidya Vidya Suresh
Amin
Suresh Date:
2018.08.14
Amin 18:40:20
+0530
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