Madhya Pradesh High Court
Smt. Farrukh Jahan Begam (Dead) Through ... vs Mohd. Mahfooz on 23 July, 2025
1
NEUTRAL CITATION NO. 2025:MPHC-JBP:33881
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 23rd OF JULY, 2025
MISC. APPEAL No. 637 of 2017
SMT. FARRUKH JAHAN BEGAM (DEAD) THROUGH LRS. SYED
MOHAMMAD ALI AND OTHERS
Versus
MOHD. MAHFOOZ AND OTHERS
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Appearance:
Shri Sanjay Agrawal Senior Advocate with Ms.Neerja Agrawal and Shri Yash
Soni - Advocate for the appellant.
Ms.June Choudhary Senior Advocate with Ms. Jayalakshmi Iyer, Shri Shikar
Jat and Shri Ratnesh Kumar Yadav - Advocates for the respondent No.1.
Shri Amit Vikram Pandey - Panel Lawyer and Shri Aditya Choubey -
Government Advocate for respondent/State.
Shri Shafiqullah - Advocate for the respondent No.14.
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ORDER
The present Misc. Appeal has been filed under Order 43 Rule (1)(i)
(d) of the Code of Civil Procedure, 1908 (for brevity 'CPC') against the
order dated 04.02.2017 passed in MJC No.431/2009 by 14th Additional
District Judge, Bhopal; whereby, appellants' application under Order 9 Rule
13 CPC for setting aside ex-parte judgment and decree dated 28.06.2007
passed in Civil Suit No.517-A/2006 has been dismissed.
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2. The short facts giving rise to the present appeal are that the
respondent/plaintiff filed a suit for specific performance and permanent
injunction in regard to land in question bearing survey No.109, details of
which are mentioned in paragraph 01 of the judgment dated 28.06.2007
passed in original Civil Suit No.517-A/2006.
3. The suit was filed on the basis of a sale agreement dated 12.10.1999
(Exhibit-P/2) and a receipt dated 20.06.2002 executed by one Smt. Rais
Jahan. It is averred in the plaint that the agreement was executed by Smt.
Rais Jahan which was acknowledged by her legal representatives namely
Iqbal Mohd., Sikander Mohd., Iftikhar Mohd., Farid Mohd., Farrukh Jahan,
Mahar Parwar Jahan, Shah Parawar Jahan and Taj Parwar Jahan and given
consent by making signatures over the agreement. Prior to filing of the suit,
Smt. Rais Jahan had expired on 17.04.2003. The suit was filed on
18.12.2006. It is the case of the appellant that the appellant was declared
ex-parte on 22.12.2006 for not marking her presence before the Court
despite service of summon issued by the Civil Court. The summon has been
filed alongwith the appeal as Annexure A/6 at page 46 which was issued for
appearance of the appellant/defendant on 22.12.2006 before the civil court.
The over leaf of the said summon endorses statement of the process server
to the effect that the service has been effected to the appellant/defendant on
20.12.2006 with her signatures.
4. Learned senior counsel for the appellant/defendant submitted that the
said service as shown to be effected on appellant/defendant is not in
accordance with law as the signatures over the summon is not of the
appellant/defendant and the same has been denied before the court below. It
is further submitted that the process server namely Dol Bahadur Thapa
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(NAW-1) has been examined before the court below whose statement is at
page 68 of the appeal. Dol Bahadur Thapa in his cross-examination has
stated that the signature over the summon said to be of appellant/defendant
has not been signed in front of him. It has further been stated that a boy had
come out of the house and he had taken the summon inside and got it
signed and gave it to him. It has also been submitted that the boy who had
received the summon, the process server could not give his name. It has
further been submitted that such service of notice is not in accordance with
the provisions of CPC as well as the Madhya Pradesh Civil Courts Rules,
(for brevity "the Rules").
5. Learned senior counsel has invited attention of this Court towards
Rule 9 of Order 5 of CPC wherein it is provided that service of summon is
to be effected on a person against whom it is issued in a manner prescribed
in sub-Rule (3) of Rule 9 of Order 5 of CPC. It has further been submitted
that as per Rule 12 CPC the person who has received the summon was not
an agent and nowhere in the matter before the court below any fact or
evidence has been led that person receiving the summon in any manner was
connected to the person against whom the summons was issued. It has also
been submitted that day to day functions of the Civil Court in respect of
procedure is based on the Civil Court Rules which also provides for service
on the party in the manner prescribed therein.
6. Emphasis has been laid on Rule 51 and 53 of the Rules to state that
the service is to be effected on a person against whom it has been issued,
whenever it is practicable and Court ought not to proceed ex-parte upon
anything short of personal service, save when substituted service has been
ordered or effected. In Rule 53, it is provided that a process shall be served
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by delivering a copy of it to the person addressed and if the person is
literate signatures has to be obtained on the summon and if the person is
illiterate then thumb-impression is required to be obtained on the original
process. It is further submitted by the learned counsel that the learned Court
below had allowed the application under Section 5 of the limitation Act on
the same set of facts, however, rejected the application under Order 9 Rule
13 CPC. It is further submitted that though the appellant had submitted the
handwriting expert's report alongwith the application in support of the
contention that the summon does not bear the signatures of the
appellant/defendant but the same has not been relied by the Court below. It
is further submitted that reply was submitted by the respondent/plaintiff and
due opportunity was granted. The respondent/plaintiff had also filed an
application for getting the signatures examined by the expert through the
State Examiner of Questioned Documents, Police Head Quarters, Bhopal.
He invited attention of this Court towards the order sheets of the learned
Court below where the application was allowed and opportunities were
given to the respondent/plaintiff to submit the admitted signatures of the
appellant/defendant for the purpose of examination, the same was
submitted but vide order dated 08.10.2012, the said proceedings for
examination have been dropped by the Court because such admitted
signatures were not available.
7. However, the appellant has submitted that he is not pressing the case
on the basis of the expert opinion of the handwriting expert but only on the
question of procedural irregularity which has been committed by the
learned Court below in accepting service of appellant/defendant and not
accepting application under Order 9 Rule 13 CPC despite proving that the
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service of summon was not in accordance with the provisions of CPC as
well as the Rules.
8. No other ground has been advanced during course of arguments.
9. Per contra, learned senior counsel appearing for the
respondent/plaintiff has submitted that the suit was filed for specific
performance. The appellant was spectator to it being a person living in the
same house where all the other defendants were living and after the decree
was passed, with intention to defeat such decree, such application for
setting aside the ex-parte decree was filed belatedly. It has further been
submitted that the learned court below while dealing with the issue of
specific performance has categorically given findings in regard to proof of
the agreement and the equitable relief of execution of sale deed. It is
submitted that pursuant to the decree, the sale deed has been executed on
14.07.2009. It has also been submitted that after the decree was issued by
the Court below on 28.06.2007, the execution was submitted on
14.01.2008. It has also been submitted that in the cross-examination of
other brothers and sisters of the appellant/defendant, the signatures of the
appellant over the agreement has been accepted/recognized.
10. It is further submitted that even, if chance is given to the appellant to
prosecute the case it is not going to give any benefit to the appellant
because the agreement has been found to be proved by the court below on
the basis of the evidence led by the brothers and sisters. It has further been
submitted that the best possible witness who was the boy who received the
summon has not been called before the court below for examination which
could have thrown light over the service of the notice and as such witness
was not called, adverse inference ought to have been drawn against the
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appellant that the best possible witness has been hidden from the Court to
come to the conclusion in respect of service of notice to the
appellant/defendant. It is further submitted that no useful purpose would be
served if the matter is remanded back as in the execution, the sale deed has
already been executed 19 years back and according to the findings of the
court below full consideration has been paid. No other ground has been
advanced during the course of arguments.
11. Heard learned counsel for the parties and perused the record.
12. The uncontroverted facts of the case are that a suit (Civil Suit
No.517-A/2016) was filed on 18.12.2006 for specific performance and
permanent injunction. Prior to filing of suit Smt. Rais Jahan had expired on
17.04.2006. The suit was filed on the basis of a sale agreement dated
12.10.1999 (Exhibit-P/2) and a receipt dated 20.06.2002 executed by one
Smt. Rais Jahan. The appellant was declared ex-parte on 22.12.2006 for not
marking her presence before the Court despite service of summon issued by
the Civil Court. The summon has been filed alongwith the appeal as
Annexure A/6 at page 46 which was issued for appearance of the
appellant/defendant on 22.12.2006 before the civil court.
13. The suit filed by respondent/plaintiff was decreed on 28.06.2007. The
appellant/defendant remained ex-parte from 22.12.2006 i.e. from the first
date of appearance of appellant/defendant. Much emphasis has been given
by the counsel for the respondent on the merits of the case that the
agreement dated 12.10.1999 was proved before the Civil Court. The other
defendants have accepted/recognized the signatures of the
appellant/defendant being consentor and on the basis of such findings, the
suit was decreed. The defendants, including the appellant, were directed to
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execute the sale deed within two months in respect of the land in question
and in case such sale deed is not executed within time, then the
respondent/plaintiff would be entitled to get that executed from the Court.
However, the question before this Court is not about the merits of the case
but the question is whether the appellant/defendant was declared ex-parte in
consonance with the provision of law ?
14. The Code of Civil Procedure, 1908 prescribes the method for setting
aside ex-parte decree against defendants. The law provides that the person
against whom an ex-parte decree has been passed can file an application for
setting aside such an ex-parte decree on the ground that the summon was
not duly served on him/her and he/she was prevented by sufficient cause
from appearing before the court, when the suit was called on for hearing.
The Court may on such terms, as the Court thinks fit, may allow such
application and shall fix a day for proceeding with the suit.
15. The basic principle to set-aside the ex-parte decree is (i) summon to
the party was not duly served and (ii) the party was prevented by sufficient
cause from appearing when the suit was called on for hearing.
16. Hon'ble Apex Court in the case of Union of India vs. Ramcharan
AIR 1964 SC 215 has held that "sufficient cause" should be interpreted
liberally so as to advance sufficient justice.
17. In the present case in hand, this Court has not to see merits of the case
but to see whether the party applying for setting aside the ex-parte decree
was served in accordance with law and if served whether such party was
prevented by sufficient cause from appearing whenever the matter was
called on.
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18. When the said principles have been analyzed on the basis of the
material and evidence produced before the Court, it is found that though the
summon (Annexure A/6) which was issued against the appellant/defendant
bears signatures said to be of appellant/defendant. However, as per the
statement of the process server, Dol Bahadur Thapa, signature on the
summon has not been done by the party in front of him. He has further
stated that a boy had come out of the house and he had taken the summon
inside and got it signed and gave it to him. He has also stated that he does
not know the name of the boy who had received the summon and got it
signed. It is clear from the statement of process server that the summon of
the suit of the first date of the appearance has not been effected on the party
as per procedure envisaged in Order 5 of CPC and Rule 51 and 53 of the
Rules for service of summon.
19. The procedure for delivering the summon by the Court is provided
under Rule 9 of Order 5 CPC. As per sub-Rule (3) of Rule 9 of Order 5
CPC, the service on the party through summon is effected by the modes
provided in the Rules. For ready reference sub-Rule (3) of Rule 9 of Order
5 CPC is extracted hereinbelow :
"9. Delivery or transmission of summons for service--
(1) Where the defendant resides within the jurisdiction of the Court in
which the suit is instituted, or has an agent resident within that
jurisdiction who is empowered to accept the service of the summons,
the summons shall, unless the Court otherwise directs, be delivered or
sent to the proper officer to be served by him or one of his
subordinates.
(3) The services of summons may be made by delivering or
transmitting a copy thereof by registered post acknowledgment due,
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addressed to the defendant or his agent empowered to accept the
service or by speed post or by such courier services as are approved
by the High Court or by the Court referred to in sub-rule (1) or by any
other means of transmission of documents (including fax message or
electronic mail service) provided by the rules made by the High Court.
20. Further, Rule 10, 11, 12, 16 and 18 of Order 5 CPC, being relevant
are reproduced hereinbelow :
10. Mode of service -- Service of the summons shall be made by
delivering or tendering a copy thereof signed by the Judge or such
officer as he appoints in this behalf, and sealed with the seal of the
Court.
11. Service on several defendants-- Save as otherwise prescribed,
where there are more defendants than one, service of the summons
shall be made on each defendant.
12. Service to be on defendant on person when practicable, or on his
agent-- Wherever it is practicable service shall be made on the
defendant in person, unless he has an agent empowered to accept
service, in which case service on such agent shall be sufficient.
16. Person served to sign acknowledgement-- Where the serving
officer delivers or tenders a copy of the summons to the defendant
personally, or to an agent or other person on his behalf, he shall
require the signature of the person to whom the copy is so delivered or
tendered to an acknowledgement of service endorsed on the original
summons.
18. Endorsement of time and manner of service-- The serving officer
shall, in all cases in which the summons has been served under rule
16, endorse or annex, or cause to be endorsed or annexed, on or to the
original summons, a return stating the time when and the manner in
which the summons was served, and the name and address of the
person (if any) identifying the person served and witnessing the
delivery or tender of the summons.
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21. In addition, the Rules which govern the field are the Rules framed
exercising power under Madhya Pradesh Civil Court Act, 1958. Rule 51
provides for personal service on the litigant/defendant whenever it is
practicable and the Court should not proceed ex-parte except when
substituted service has been ordered.
22. Rule 53 provides the acknowledgment of the service either by
signature by a literate person or thumb impression by an illiterate person on
the original process/summon. Rule 12 of Order 5 CPC provides for service
on defendant in person. Rule 16 of Order 5 CPC provides signature of a
person to whom such copy of summon is delivered.
23. In the present case in hand, the summon though bears signature of
person alleged to be Smt. Farrukh Jahan (appellant/defendant) but same is
neither supported and corroborated by the statement of process server who
is said to have effected the service, nor of witnesses who has seen delivery
of summon. Therefore, in the considered opinion of this Court, the service
of summon on the appellant/defendant has not been effected as per law.
Now it is to be seen that the second requisite of the provision of Rule 9
Order 13 CPC is met out in regard to sufficient cause which prevented the
appellant from appearing on the date of hearing.
24. The Hon'ble Apex Court in the case of Parimal v. Veena (2011) 3
SCC 545 has held that the test which is to be applied for deciding
application under Order 9 Rule 13 CPC is to see whether the defendant
honestly and sincerely intended to remain present when the suit was called
for hearing and did his best to do so and the sufficient cause is for which
the defendant could not be blamed for his absence. Sufficient cause is a
question of fact and the Court has to exercise its discretion in the varied and
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special circumstances in the case at hand. There cannot be a straitjacket
formula of universal application. The extract of the law laid down by the
Hon'ble Apex Court is hereinbelow :
"15. While deciding whether there is sufficient cause or not, the court
must bear in mind the object of doing substantial justice to all the
parties concerned and that the technicalities of the law should not
prevent the court from doing substantial justice and doing away the
illegality perpetuated on the basis of the judgment impugned before it.
(Vide State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94 :
2000 SCC (L&S) 845 : AIR 2000 SC 2306] , Madanlal v. Shyamlal
[(2002) 1 SCC 535 : AIR 2002 SC 100] , Davinder Pal Sehgal v.
Partap Steel Rolling Mills (P) Ltd. [(2002) 3 SCC 156 : AIR 2002 SC
451] , Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002
SC 1201] , Kaushalya Devi v. Prem Chand [(2005) 10 SCC 127] , Srei
International Finance Ltd. v. Fairgrowth Financial Services Ltd.
[(2005) 13 SCC 95] and Reena Sadh v. Anjana Enterprises [(2008) 12
SCC 589 : AIR 2008 SC 2054] .)
16. In order to determine the application under Order 9 Rule 13 CPC,
the test that has to be applied is whether the defendant honestly and
sincerely intended to remain present when the suit was called on for
hearing and did his best to do so. Sufficient cause is thus the cause for
which the defendant could not be blamed for his absence. Therefore,
the applicant must approach the court with a reasonable defence.
Sufficient cause is a question of fact and the court has to exercise its
discretion in the varied and special circumstances in the case at hand.
There cannot be a straitjacket formula of universal application."
25. When the present case in hand is adjudged on the anvil of the
principle of law laid down by the Hon'ble Apex court, it is evident that
service of summon of the suit has not been effected on the
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appellant/defendant in accordance with law and procedure, therefore, the
appellant/defendant was prevented by sufficient cause from appearing on
the date for which it was issued.
26. As regards the contention of learned counsel for the
respondent/plaintiff that the boy who received the summon has not been
examined by the appellant/defendant would draw adverse inference against
the appellant/defendant is not in accordance with the principles of Evidence
Act. The boy whose name has not been disclosed by the processor server in
his statement, then by no stretch of imagination, the appellant/defendant
had any source or occasion to know that boy. The adverse inference would
have been drawn against the appellant/defendant in case process server had
disclosed the name of the boy and despite that boy had not been called in
the witness box by the appellant/defendant.
27. When the fact of non-service of summon has been duly proved by the
process server, then the appellant/defendant is not required to lead any
further evidence in that regard. Once it is proved by process server then the
onus was on the respondent/plaintiff to call for that boy or other witnesses
to rebut the same that such boy was living in the same house or was related
to the appellant/defendant and he got the signature of the
appellant/defendant over the summon. In absence of such evidence, the
court cannot come to the conclusion that service through an unknown boy
was effected on the appellant/defendant.
28. The learned court below in the impugned order has opined that once
the signature on the summon has been obtained then it would be presumed
that the service has been effected and it was not required for the process
server to name the person on the service report through whom service has
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been effected. It has further been observed by the Court below that the
address on which the summon has been issued is the address which has
been mentioned in the suit and in the Vakalatnama and presumed that when
such address was mentioned in the summon, it must have been served on
the said address.
29. The question of service is not on the house rather it is on the person,
as per the legislative intent. Service is not effected on the house in fact on
the party, therefore, even if the address mentioned on the document and
application submitted by the applicant is same but that cannot conclude that
the service has been effected when the evidence of the process server is
contrary.
30. The service through relative and agent is provided under Order 5
CPC. Rule 12 provides for service through agent but for that purpose, the
proof of appointment of agent is required. Rule 11 Order 5 CPC provides
manner of service on several defendants, which is extracted hereinbelow :
"11. Service on several defendants.--Save as otherwise prescribed,
where there are more defendants than one, service of the summons
shall be made on each defendant.
12. Service to be on defendant in person when practicable, or on his
agent. -- Wherever it is practicable, service shall be made on the
defendant in person, unless he has an agent empowered to accept
service, in which case service on such agent shall be sufficient."
31. As per the said provision, if the defendants are more than one, then
service is to be effected on each of the defendants. So, the ground of the
respondent/plaintiff that other brother and sisters were served cannot be a
ground for presuming service on the appellant/defendant.
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32. Rule 15 of Order 5 CPC provides where the defendant is absent from
the residence, the service can be effected on an adult male or female
member residing with him but in the present case, service on
appellant/defendant has not been purported to be effected on such adult
male or female member, in fact it was served in the light of Rule 11 of
Order 5 CPC on the appellant/defendant.
33. On the basis of above analysis, it has come crystal clear that the
appellant/defendant was not served in accordance with the provisions of
CPC and Civil Court Rules, therefore this court is of the considered opinion
that the appellant was prevented by sufficient cause from appearing on the
date when the matter was called on for hearing.
34. Consequently, the appeal succeeds and is allowed. The ex-parte
decree dated 28.06.2007 passed in Civil Suit No.517A/2006 against the
appellant is hereby set-aside. The matter is remitted back to the Court
below to adjudicate the suit from the stage when the appellant/defendant
was declared ex-parte.
35. Parties are directed to remain present before the Court below on
01.09.2025. The appellant is directed not to seek any unnecessary
adjournments as the matter is old and has been pending since 2006. The
trial Court is directed to decide the suit as expeditiously as possible.
36. Record of the Court below be sent back henceforth alongwith copy of
this order.
(DEEPAK KHOT)
JUDGE
anand
