Mr. Om Prakash Goyal vs Mr. Tapan Kumar Dass
2006 Latest Caselaw 933 Del

ORDER

J.P. Singh, J.

1. This Civil Revision Petition under Section 115 of the Code of Civil Procedure is directed against the order dated 21.04.2006 passed by Additional District Judge, Delhi, allowing an application under Order IX Rule 13 read with Section 151 CPC of defendant No. 2 and setting aside the ex-parte decree against defendant No. 2.

2. I have heard Mr. Randhir Jain, learned counsel for the petitioner, on the point of admission, and have gone through the impugned orders and copies of the documents placed on the file.

3. The petitioner-plaintiff had filed a suit for recovery of Rs. 6,40,000/- as damages for malicious prosecution. Defendant No. 1 was the State of Bihar and defendant Nos. 2 to 5 were/are employees of the All India Radio. An FIR was registered on report of the defendant No. 2 against the petitioner-plaintiff. The criminal case resulted in acquittal and thereafter the plaintiff filed the suit for recovery of damages, in the High Court of Delhi. On enhancement of jurisdiction of the District Court, the matter was transferred to the District Court.

4. The case of the respondent/applicant is that he had no knowledge about the suit because he was never served with the summons and that he came to know about the suit and passing of the decree when he received a caveat application sent to him by Mr. Randhir Jain, Advocate on behalf of the plaintiff on 12/13th May, 2004 He engaged a counsel and came to know that a suit had been filed against him and other persons in May, 1997 which was decreed on 6.4.2004 He then took steps to obtain information. The court file was inspected. He has given details in the application under Order IX Rule 13 CPC. It is stated that the suit continued on mistaken impression that defendant No. 2 had been served. Inspection of the file revealed that on 26.9.1997, the joint Registrar (O), High Court of Delhi directed issue of summons for settlement of issues to defendants for 3.12.1997, on filing of process fee, and registered covers within a week and as per service report, the defendant No. 2 remained unserved.

5. On 3.12.1997, the Presiding Officer was on leave and the Court Master renotifed the suit for 23.2.1997. On which date counsel for defendant Nos. 1, 3 and 5 appeared and they were directed to file written statement and original documents. Thereafter no enquiry was ever made as to whether defendant No. 2 was served. On 5.8.2003 the suit was transferred to the District Court from High Court but no notice was sent to defendant No. 2 and ultimately, the suit was decreed.

6. It is submitted that the address of defendant No. 2 was given as Port Blair, but even prior to filing of the suit the defendant No. 2 was transferred from Port Blair to Delhi. Moreover, summons were not sent even to Port Blair. Even in the memo of parties, it was indicated that defendant No. 2 be served through Director General, Doordarshan, Mandi House, New Delhi but even the Director General remained unserved.

7. It is alleged that the plaintiff filed a false affidavit of service and the record received form the Post Office about service. It is averred that the Regd. AD notice was not sent by the Court Registry but may be by the learned counsel and any such sending was unauthorized and even that registered letter was not received by the defendant No. 2/applicant.

8. In the reply, it was contended that the application was barred by time, because Mr. B.S. Yadav, Advocate, Govt. Counsel, and later on Mr. Ratan Lal, Advocate, Govt. Counsel had appeared and that the defendant No. 2 was represented, but did not contest the suit.

9. The learned Additional District Judge has examined these aspects and has noted that Mr. B.S. Yadav, Advocate had entered appearance on behalf of the Central Government including defendant No. 2 and later Mr. Ratan Lal, Advocate had also entered appearance on behalf of the Government and other defendants. Learned Additional District Judge referred to memorandum of appearance and has opined that no vakalatnama was ever filed on behalf of defendant No. 2 and as is the practice, the Government counsel do appear for the Government and opined that Mr. B.S. Yadav might have filed memorandum of appearance under the belief that he had to look after the interest of other government officials also.

10. On the point of limitation, the learned Additional District Judge has opined that the time in this case should be considered from the date of knowledge of defendant No. 2 on receiving caveat application on 12/13th May, 2004 The limitation was of 30 days. It expired during summer vacations of the District Court. The application was filed on the very opening day i.e. 1st July, 2004 and thus the application was held to have been filed within time. I am also of the view that probably the court was in a way misled by appearance of the Govt. counsel on behalf of the Government and other officials as well. But since it was a case of recovery of damages from the government employees in their individual capacities, they should have been served individually or should have been represented by a duly authorized counsel. I also find force in the reasoning of the learned Additional District Judge that Port Blair was not the correct address of defendant No. 2 when the suit was filed. The learned Additional District Judge has also dealt with the point that the learned counsel could not directly send notice on behalf of the court. The order dated 26.9.1997 passed by the Joint Registrar, High Court of Delhi was to file Regd. AD covers in the court within one week.

11. Learned counsel for the petitioner has contended that the Government counsel or for that matter any counsel as a matter of practice can appear in the court and get his presence recorded on behalf of the litigant even without filing memorandum of appearance and that is considered to be acceptance of services on behalf of the litigant. There is no dispute on this point, but if a memorandum of appearance and particularly vakalatnama is not filed and a dispute is raised by the affected party then the question may arise as to whether the party had the notice/knowledge of the legal proceedings. The fact remains that this case was not only against the Government, but also against the employees in their individual capacity by name. Therefore, personal service on them, in my view, was necessary and since vakalatnama was not filed on behalf of defendant No. 2 and there is no cogent record of service, it gives rise to doubts about the service/knowledge of defendant No. 2/applicant/respondent (herein).

12. Considering all the facts and circumstances, I am of the view the learned Additional District Judge has aptly dealt with all the aspects of the matter and there is no illegality or gross irregularity so as to invite interference under Section 115 of the Code of Civil Procedure. Consequently, the petition is dismissed.