Indian Container Leasing Company vs M/S. Kochar Freight Carries (P) ...
2000 Latest Caselaw 328 Del

ORDER

Vikramajit Sen, J.

1. Pursuant to orders dated 22.4.1997 service on the Defendant was effected by the clerk of the advocate for the Plaintiff on 2.5.1996. The original summons were, however, misplaced. It is further stated that when the case came up for hearing on the next date, i.e. 10.9.1997 fresh notice was ordered for 9.12.1997. The misplaced summons were thereafter discovered. It is not in controversy that appearance on behalf of the Defendants was entered on 5.12.1997 after they were served on 27.11.1997.

2. It was on 24.4.1997 that summons were first issued to the Defendants in the prescribed form for 10.9.1997. It is necessary to underscore that Dasti orders were not passed in this context. Orders permitting service, Dasti, are normally granted where urgency and expedition is necessary. It is only an adjunctory and ancillary from of service. Even where Dasti service are ordered, there is no justification for not simultaneously also following the ordinary procedure of service, i.e. either by personal service through the Process Server, or through Registered A.D., or both. In the present case initials/signatures are available on the Dasti summons. It is to be presumed and surmised by the Court that these belong to the Defendants. It has further been left to speculation as to which of the Defendants these initials/signatures belong to. The Court is expected and invited to act upon affidavits of the court clerk of the advocate concerned. All this in a summary suit where appearance is time bound! And that too, where service on the Defendant is sought to be effected on the very first occasion. No doubt whatsoever should remain in the context of service of a party to the proceedings. The need for the Court to be satisfied beyond doubt, on this score, cannot be over-emphasized. A fundamental miscarriage of justice, affecting the very sinews of the list, is always possible and lurking where a deviation from the recognised procedure is made. Further more, no reasons or explanations are forthcoming on account of which the Court should ignore its own Orders. As has been stated above, the first hearing was on 24.4.1997 and the case was adjourned to 10.9.1997. On this latter date the following orders were passed:

S. No. 807/97 and I.A. 3611/97.

Heard.

Ld. counsel for the Plaintiff shall take steps for service of fresh summons and notice on the defendants by both ways Regd. A.D. post as well as ordinary process, returnable on 9th December, 1997.

Process fee and Regd. A.D. cover within three days.

September 10, 1997 Sd/- S.N. Kapoor, J.

'hp'

3. There is no warrant whatsoever for overlooking these orders. The "appearance" itself records, and this is also borne out from the Court records, that the Defendants were served on 27.11.1997. Within the stipulated period counsel for the Defendants have entered appearance. Pt would not be sanguine to presume therefore, that had the Defendants been properly served on the prior and first occasion they would have also entered appearance Within the requisite period.

4. Service ought to have been effected, in the first instance, by ordinary process as was ordered on the first date of hearing. Dasti service, with all its inherent weaknesses of possible manipulation cannot be accepted in derogation of the ordinary procedure. Even if Dasti service had been effected, in view of the orders for service on the Defendants on the next ensuing date, i.e., 10.9.1997, the Defendants were required to enter appearance only pursuant to service in terms of these orders.

5. While I was considering whether the suit deserves to be decreed I had perused the summons issued by this court to be fully satisfied about the facts pertaining to the service of the Defendant. Appearance has been entered on behalf of the Defendants on 5.12.1997. The case shall proceed from that stage. The Plaintiff will file the application for issuance of summons for judgment under Order xxxvII Rule 3(4) of the Code of Civil Procedure.

Re-notify the matter on 1st May, 2000.