M/S New India Assurance Co. Ltd. vs Shri Preet Pal Singh & Ors.
2010 Latest Caselaw 3068 Del

 *                      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                    Mac. Appeal No.159 of 2007

%                                                                       02.07.2010

         M/S. NEW INDIA ASSURANCE CO. LTD.           ...... Appellant
                             Through: Mr. D.K. Sharma, Advocate.

                                         Versus

         SHRI PREET PAL SINGH & ORS.                   ..Respondents
                             Through: Mr. H.N. Vashistha, Advocate for R-1.

                                                        Reserved on: 17th May, 2010
                                                       Pronounced on: July 2, 2010

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment? Yes

2.       To be referred to the reporter or not?                                    Yes

3.       Whether judgment should be reported in Digest?                           Yes.

                                   JUDGMENT

1. By this appeal, the appellant has assailed an order dated 1st December, 2006

passed by the learned Motor Accidents Claim Tribunal whereby an application of

respondent No.1 under Order IX Rule 13 CPC was allowed and the award dated

11th January, 2005 passed by the Tribunal was set aside to the extent of giving him

an opportunity to prove that there was no breach of obligation of the policy by

him.

2. As per the record, a claim petition was filed in September, 1998. Notice of

this petition was ordered to be sent to respondent No.1, that is, applicant, being the

owner of the offending vehicle for 16th December, 1998. The process of

respondent No.1 was received back unserved. However on 16th December, 1998,

the Presiding Officer of the Tribunal was on leave. The Court Master/Reader of

the court had to give dates to the litigants and while giving dates, he fixed this case

for 7th April, 1999 for compliance of previous order of the court. The summons

were again sent to respondent No.1 for 7th April, 1999 and the summons

were served upon respondent No.1. However, respondent No.1 did not put

appearance on 7th April, 1999. The learned Tribunal ordered for proceeding

respondent No.1 as ex-parte. However on subsequent date, it seems, Tribunal did

not notice its earlier order and again ordered for service of respondent No.1 for 4th

August, 1999. The summons were sent through registered cover to respondent

No.1. The postman visited house of addressee/respondent No.1 for seven days

continuously and the occupants of the house were informed by him about the

registered letter but respondent No.1 did not make himself available to receive the

registered letter, nor he directed any other family member to receive the court

notice on his behalf. This was despite the fact that he had already received

summons sent through court for 7th April, 1999. The postman gave his

report that respondent No.1 was not available despite repeated visits. The Tribunal

after seeing that the respondent was deliberately not appearing in the court

proceeded ex-parte and trial of claim petition was completed and award passed.

3. In the application, the applicant/judgment debtor raised an issue that the

service of judgment debtor effected on the basis of order of Court Master/Reader

was technically no service and this argument was accepted by the learned

Tribunal. I consider that the Tribunal went wrong in accepting this argument of

the judgment debtor.

4. Whenever a judicial officer or a Tribunal is on leave or is not able to hold

the court due to some reason, the Court Master/Reader has to entertain the litigants

and give them next date of hearing. This function of the Court Master/Reader is a

lawful function being performed by an official of the court under the authority of

the judge/Tribunal. This function is a ministerial function. The Court

Master/Reader who gives dates to the litigants, in fact tells the litigants that they

have to appear on the next date of hearing. The Court Master/Reader commits no

wrong if he tells the litigant that on next date of hearing the matter will be taken up

for the same cause for which the case was fixed on the date when the judicial

officer was absent. Such an order is a perfectly lawful order. Neither the Court

Master/Reader commits any illegality by telling the litigants that the previous

order passed by the court, if has not been complied with, should be complied with.

The purpose of Civil Procedure Code is not to harass the litigants but to see that

the court is managed in a proper and effective manner and proceedings are done as

per law. It is not in the interest of the litigants or justice that the Court

Master/Reader fixes all the cases for proper order since the judge was absent. If he

has authority to adjourn the case and give next date of hearing, he has authority to

fix the case for the same purpose for which the case was fixed on the date when

the judge was absent. Fixing cases for proper order means wastage of crucial time

of the court on next date when the court has to take all those cases again and pass

an order as to for what purpose the case would be taken up on subsequent date of

hearing. An unscrupulous litigant can take benefit of such routine order of fixing

cases for proper order and stop appearing on the ground that there were no

directions of the court to appear and the court should has summoned him de novo.

The court can delegate ministerial functions to its staff and these functions are

routinely delegated. The summons of cases sent to various parties are not signed

by the judge personally but are signed by the ministerial staff under the authority

of the judge although summons sent to a party are the directions issued by the

judge for appearance in the court on a particular date for discharging a particular

function.

5. I, therefore, consider that when a Court Master/Reader, in case of

Tribunal/judicial officer not holding the court passes an order directing parties to

appear on a particular date and fixes the case for the same function which was to

be discharged on that day and tells the parties to comply with the order passed by

the court on previous hearing, he does no illegal act nor such an order can be

considered as an illegal order or unauthorized order. I, therefore, find that

Tribunal wrongly came to the conclusion that the Court Master/Reader's order of

fixing the case for 7th April, 1999 for compliance of previous order was technically

wrong.

6. If the Tribunal had inadvertently again issued summons to the

respondent/judgment debtor that does not amount to any illegality nor that gives a

right to the judgment debtor to take the court for a ride and not to appear in the

court or to evade service. The whole effort of the judgment debtor in this case had

been to defy the court summons and not to appear. The court summons duly

served on judgment debtor for his appearance on 7th April, 1999 did not mention

that the summons were sent on an order passed by the Court Master/Reader, when

the judge was on leave. The summons were sent in routine performa and received

by the judgment debtor. The judgment debtor/respondent No.1 had no reason to

ignore the summons and not to appear. If he ignored the summons and did not

appear, he did so at his own peril. He cannot be heard to say that these summons

were technically wrong and, therefore, he had a right not to appear in the court.

The summons sent to a party, whether under the orders of the court or because of

Reader's order is an intimation to the party to appear in the court. The party

cannot disregard the summons. Non-appearance of the party, therefore, has to be

considered as a deliberate non-appearance and the consequences have to follow.

The subsequent conduct of the judgment debtor/respondent in not receiving the

registered cover sent to his address despite postman's continuous visit to his house

for seven days and not instructing his family members to receive the registered

cover shows that the respondent had determined not to honour summons of the

court and not to appear. No mercy can be shown to such respondent who

deliberately defy court orders and do not appear in the court thinking and

presuming that any order passed by the court can be got set aside on making lame

excuses. It is because of this attitude that cases in this country do not get decided

for years together and the get struck up at service stage for years together since the

respondent defy court summons with immunity and the courts set aside ex-parte

orders in a casual manner.

7. In Sunil Poddar & Ors. vs. Union Bank of India; AIR 2008 SC 1006, the

Supreme Court had considered the legal position under Order IX Rule 13 CPC and

observed as under :-

"18. It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order V of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff s claim, he cannot put forward a ground of non service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order IX of the Code. Since the said provision applies to Debt Recovery Tribunals and Appellate Tribunals under the Act in view of Section 22(2)(g) of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before the DRT, they had no sufficient time to appear and answer the claim of the plaintiff-bank and on that ground, ex parte order deserves to be set aside."

(emphasis added)

8. In view of law laid down by the Supreme Court in Sunil Poddar's case

(supra), I consider that once the respondent had received summons of the court

whether it was sent because of the orders of the Court Master/Reader or otherwise,

he had information to appear in the court and since he failed to appear in the court,

he was rightly proceeded ex-parte and ex-parte award was passed. Such an award

cannot be set aside on the ground that the order passed by the Court Master/Reader

was technically not sound.

9. I, therefore, allow this appeal. The order dated 1st December, 2009 passed

by the learned Tribunal is hereby set aside.

SHIV NARAYAN DHINGRA [JUDGE] JULY 2, 2010 'AA'