Delhi High Court
Gurmeet Singh And Anr. vs Oriental Bank Of Commerce on 1 May, 2003
Equivalent citations: 2003 (69) DRJ 39
Author: C Mahajan
Bench: C Mahajan
JUDGMENT
C.K. Mahajan J.
1. The appellants seek setting aside of the order dated 8.8.2002 passed by the learned Addl. District Judge dismissing the appellants' application under Order 9 Rule 13, CPC
2. The respondent herein had filed a suit for recovery of Rs. 4,43,714.55. The Trial Court recorded that appellants were served. Since appellants did not put in appearance, they were proceeded ex parte. Ex parte evidence was led and the final order was passed on 23.7.1987. The appellant moved an application under Order 9 Rule 13, CPC on the ground that the appellants had not been served with the summons and therefore did not get an opportunity to defend the suit.
3. Learned counsel for the appellants contents that on the refusal of the appellants to accept the summons of service, the affixation on the outer door was bad as there was no witnesses to the affixation or for the recording of The refusal. In these circumstances, the appellants were not properly served. The Court has drawn a presumption under Section 114 of the Evidence Act that the Process Server "must have" done his job properly while discharging his official duty. However, the Court lost sight of the fact that there are special provisions with regard to service in a situation where the person refuses to accept the service. Service cannot be accepted to have completed on the basis of presumptions.
4. Heard.
5. From a perusal of The Trial Court record, it appears that the process server was entrusted with the summons on the appellants. According to the process server, he went to the residence of the appellants and tendered a copy of the summons. The appellants refused to accept the summons. Then he returned the summons along with an endorsement of refusal on the back of the summons to the effect that the appellants refused to take summons after reading the same. The summons were then affixed on the spot but in the absence of any witnesses. The only question that arises for determination is whether the appellants can be said to have been served properly in the manner contemplated by the CPC.
6. Rules 17 and 18 of Order 5, CPC lays down that when the defendant refused to accept service, the service shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued with a report stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
7. The learned Trial Court in the impugned order referred to Rule 10 in Chapter 21 of The Delhi High Court Rules which provides that if a person to be served refuses to accept the acknowledgement, the serving officer shall affix a copy of the summon the outer door. The rule further provides that the process server shall return the original to the Court from which it was issued with a report stating that copy has so been affixed and the name and address of the persons in whose presence the copy was affixed. He shall obtain the signatures of the persons who identified the persons and in whose presence the copy was affixed on the said house. Rule 14 provides that the Registrar shall make enquiry as to the sufficiency of service of the process.
8. In the present case, on the refusal of the appellants, a copy of the notice is stated to have been affixed on the outer door of the residence of the appellants without any witnesses. Tender of the summons, its refusal and affixation of the summons Along with a copy of the plaint on the wall should have been witnessed by persons who identified the appellants and witnessed such procedure. In the present case, there was no witness available at the spot. The correctness of the endorsement is difficult to believe even prima facie.
9. The Trial Court ought to have satisfied itself with regard to service of summons keeping in view the provisions of law, High Court rules and orders. Order 9 Rule 6, CPC casts an obligation on the court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being "proved" that the summons was duly served when and when alone, the court is conferred with a discretion to make an order that the suit be heard ex parte. Any default or casual approach on the part of the court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex parte decree or proceedings in the suit wherein he was deprived of hearing for non fault of his. If only the trial court would have been conscious of its obligation cast on it by Order 9 Rule 6, CPC, the case would not have proceeded ex parte against the defendants-appellant and a wasteful period of over 7 years would not have been added to the life of this litigation.
10. Be that as it may, I am satisfied that the summons were not served on the appellants in the manner provided for in the CPC and the Delhi High Court Act and rules. They did not have an opportunity of appearing in the Trial Court and contesting the suit on merits. The Trial Court has committed a serious error of law resulting in failure of justice.
11. I find support from a judgment of the Supreme Court in Sushil Kumar Subharwal v. Gurpreet Singh and Ors., .
12. In these circumstances, the order of the Trial Court is not sustainable. Consequently, the appeal is allowed. The impugned order dated 8.8.2002 is set aside.
13. The ex parte decree passed by the Trial Court on 23.7.1987 is also set aside. The suit is restored to is original number and position. The Trial Court shall now decide the suit on merits after trial.
