Madhya Pradesh High Court
Shri Shiva Alias Lucky Sen vs Smt. Anita Tank on 17 June, 2025
1
NEUTRAL CITATION NO. 2025:MPHC-JBP:26832
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 17th OF JUNE, 2025
MISC. APPEAL No. 5969 of 2024
SHRI SHIVA ALIAS LUCKY SEN
Versus
SMT. ANITA TANK
Appearance:
Shri Siddharth Narula - Advocate for the appellant.
Shri Hemant Kumar Namdeo, learned counsel for the respondent No.1.
ORDER
1. This Misc. Appeal has been filed under section 43 Rule 1(r) of C.P.C. against
the impugned order dated 19.7.2024 passed by the court of Principal District
Judge, Bhopal in M.J.C.No.228/2024.
2. Brief facts of the case in narrow compass are that a civil suit was filed by the
respondent/plaintiff for eviction, arrears of rent and mesne profits, which was
registered as R.C.S.No.223-A/2019. The trial court vide impugned judgment
and decree dated 7.5.2022 dismissed the suit ex-parte. Being aggrieved by
the said judgment and decree, the respondent/plaintiff preferred regular First
R.C.A.No.80/2022 before the Principal District Judge, Bhopal on 23.6.2022.
3. Learned counsel for the appellant submitted that the appellate court had
issued notices/summons to the appellant on 20.2.2023 for appearance on
13.4.2023. It is submitted that on 13.4.2023, the appellate court has
proceeded ex-parte against respondent/defendant with an observation that
despite of notice by affixation, no one appeared on behalf of the respondent.
Consequently, the appellate court has pronounced ex-parte judgment and
decree dated 23.6.2023 reversing the judgment and decree pronounced by the
civil court, granting decree in favour of respondent/ plaintiff against the
NEUTRAL CITATION NO. 2025:MPHC-JBP:26832
appellant/ defendant for eviction in R.C.A.No.80/2022. It is further submitted
that pursuant to said judgment and decree, the respondent/plaintiff attempted
to dispossess the appellant from the leasehold property. On such event of
dispossession, the appellant gathered the knowledge of ex-parte judgment and
decree in Civil Appeal and, therefore, filed an application under Order 41
Rule 21 C.P.C. on 28/5/2024 along with an application under Section 5 of the
Limitation Act.
4. It is submitted by counsel for the appellant that as the appellant was not aware
of the fact of ex-parte decree passed by the appellate court against him,
therefore, prayed for condonation of delay in filing the application under
Order 41 rule 21 CPC. It is submitted in the application under Section 5 that
for the first time the appellant came to know about the said ex-parte judgment
and decree on 21.5.2024 when the respondent plaintiff came to disputed
property with process server for his dispossession and, accordingly, filed the
application under Order 41 Rule 21 CPC along with Section 5 of Limitation
Act on 28.5.2024.
5. Learned counsel for the appellant has submitted that as per Article 123 of the
Limitation Act, the limitation to file such an application is 30 days. As the
judgment and decree was passed on 23/6/2023, the application for re-hearing
under Order 41 Rule 21 C.P.C. was filed on 28.5.2024 along with an
application for condonation of delay under Section 5 of the Limitation Act,
the learned appellate Court vide order dated 19/7/2024 has rejected the said
application on the ground of delay as well as on merits. It is further
submitted that the said order is against the record and settled principle of law
hence deserves to be set aside by granting an opportunity to the appellant to
put forth his submission before the appellate court. To buttress his contention
counsel for the appellant has placed reliance upon the judgment of the Apex
Court in the case of Kunja Vs. Lalaram and others, reported in 1986 SCC
NEUTRAL CITATION NO. 2025:MPHC-JBP:26832
online MP 12, Baijnath Mishrilal Kachhi Vs. Hari Shankar, s/o Mishri
Lal and others, reported in 2000 SCC Online MP 346 and in the case of
Shashi and others Vs. Mohanlal Tiwari and others, reported in 2024
SCC online MP 4235.
6. Per Contra, counsel for respondents has refuted the submissions made by
counsel for the appellant and submitted that the learned appellate court while
deciding the said applications has categorically held in para 9 of the order
dated 29/7/2024 that the appellant was properly served as per the provisions
of CPC and thereafter proceeded ex parte. Thus, on the said ground prayed
that no interference is called for by this court in the present appeal and the
order passed by the appellate court by the court below deserves to be
affirmed.
7. Heard the learned counsel for the parties and perused the record.
8. A coordinate Bench of this Court in the case of Kunja (supra) has held in
para 5 as under :-
5. I have no hesitation to take the view that the provisions of R. 19
aforequoted are mandatory in real sense of the term and that it casts a
duty on the Court to make a judicial order while accepting service
effected in the manner prescribed under Rule 17 of O. 5, C.P.C. I say so
because the legislature requires the Court that it "shall either declare that
the summons has been duly served or order such service as it thinks fit."
Because also, the legislature vests jurisdiction in the Court to examine
the serving officer even when his report is supported by an affidavit.
That the] discretion has been duly and judicially exercised even to refuse
to examine the serving officer in such a case must be manifested in the
order passed under Rule 19 of Order 5, C.P.C., accepting service
thereunder. Any other view, I have no hesitation to say at once, will
cause serious injustice to moneyless and numberless litigants in this poor
country where justice has to be purchased at a very high price. I must
heed the mandate of Art. 39-A of the Constitution to so declare
emphatically in unambiguous terms despite my attention being drawn to
a decision of a single Judge in Chandansingh, 1969 MPLJ (Notes) 21.
With due respect, I humbly beg to differ as the view taken by his
Lordship does not accord with the constitutional mandate. I find it
difficult to accept the proposition that the report (endorsement or the
NEUTRAL CITATION NO. 2025:MPHC-JBP:26832
affidavit) of the process server is sacrosanct. If that had been the
position, the legislature would not have invested the Court to exercise
discretion in the matter of examining the process server by which a
valuable right has been created in the aggrieved person to contest
validity of service; because his vital right to be heard in the case could be
impaired immeasurably with this object it has made the provision. In any
case, his Lordship was not called upon to expound on the ambit and
scope of Rule 19, directly in issue in this case, though he spoke of R. 18.
The decision, therefore, is distinguishable on facts.
9. A coordinate Bench of this Court in the case of Baijnath Mishrilal Kachhi
(supra) has held as under :-
18. Thus, it is clear that neither the service was effected properly, nor
the trial Court observed the necessary requirements of law under Order
5, Rule 19 of the Code mandating recording of satisfaction, after
examining the serving officer on the question of service of summons,
on the appellant.
19. In Kunja v. Lalaram (1987 MPLJ 746), it has been laid down that
the provisions of Rule 19 of Order 5 of the Code are mandatory and
cast a duty on the Court to make a judicial order while accepting-
service effected in the manner prescribed under Rule 17 of Order 5 of
the Code. It has further been observed that non-compliance of Order 5,
Rule 19 will cause serious injustice to the defendant. Bombay High
Court in Baburao Soma Bhoi v. Abdul Raheman Abdul Rajjak
Khatik2000 (1) Mh. L.J. 481 : (1999) All India High Court Cases
3725), has observed that the return of summons should be accompanied
by the affidavit of the process server, which is in Form 11 of the First
Schedule of the Appendix "B" of the Code. If the return report of the
process server is without an affidavit, the Court has to record the
statement of process server and after making further enquiry, the Court
should hold that the summons has been duly served or not.
20. In the instant case as noticed above, the trial Court without
examining the process server, directed that the appellant/defendant No.
1 be proceeded against ex parte; even though the report of the process
server was not accompanied with his affidavit. Obviously such a course
was not permissible.
21. In the foregoing circumstances, it is clear that there was no proper
service of summons on the appellant. The appellant stated that the
summons was never tendered to him and that he never refused to accept
the summons. His statement in the face of the infirmity in the evidence
led by the plaintiffs/respondents in the above regard has to be accepted.
Plaintiffs/respondents having failed to prove that there was due service
NEUTRAL CITATION NO. 2025:MPHC-JBP:26832
of summons of the suit on the defendant/appellant, appellant's
application under Order 9, Rule 13 of Civil Procedure Code, deserved
to be allowed and ex parte proceedings against him deserves to be set
aside.
10. A coordinate Bench of this Court in the case of Shahsi (supra) has held as
under :-
15. It reveals from the record of the original civil suit that learned trial
Court did not follow the provisions enumerated under Order V Rules
19 of CPC despite the fact that the alleged service report does not
contain the name, address and signature of the witnesses before whom
ancestors of appellant-Mridul Brahman/defendant No. 6 has refused to
accept the notice. There is no material available on record that service
on defendant No. 6 was properly performed.
16. Article 123 of the Limitation Act, 1963 provides the period of
limitation for application to setting aside the ex-parte judgment and
decree. As per Article 123 of the Limitation Act, 1963 limitation for
filing the application for setting aside ex-parte judgment and decree
period is 30 days from the date of decree and if summon/notice was not
duly served, then the time beguns from the date of knowledge of the
decree.
17. As discussed above, in civil suit No. 13-A/2003 summon of the
civil suit was not duly served on the defendant No. 6, therefore, the
period of limitation began from the date of knowledge of the decree.
11. Order 5 Rule 19 CPC provides examination of serving officer in case of
service which has been affected under Order 5 Rule 17 CPC. For ready
reference the provision is reproduced hereinbelow :-
"Order V Issue and service of summons.
.......
Rule 17. Procedure when defendant refuses to accept service, or
cannot be found. - Where the defendant or his agent or such other
person as aforesaid refuses to sign the acknowledgment, or where the
serving officer, after using all due and reasonable diligence, cannot
find the defendant, who is absent from his residence at the time when
service is sought to be effected on him at his residence and there is no
NEUTRAL CITATION NO. 2025:MPHC-JBP:26832
likelihood of his being found at the residence within a reasonable time
and there is no agent empowered to accept service of the summons on
his behalf, nor any other person on whom service can be made, the
serving officer 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 endorsed thereon or annexed thereto 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."
......
Rule 19 Examination of serving officer.- where a summons is
returned under Rule 17, the court shall, if the return under that rule has
not been verified by the affidavit of the serving officer, and may, if it
has been so verified, examine the serving officer on oath, or cause him
to be so examined by another Court, touching his proceedings, and
may make such further enquiry in the matter as it thinks fit, and shall
either declare that the summons has been duly served or order such
service as it thinks fit.
12. From bare perusal of aforesaid enunciation of law and the statutory provision,
it is clear that when summons is returned under rule 17, if not verified by the
affidavit of the serving officer, on examination of serving officer on oath or
cause him to be so examined by another Court, touching his proceedings, and
by making such further enquiry in the matter as Court thinks fit, declare that
the summons has been duly served or order such service as it thinks fit.
13. From perusal of the order-sheet declaring the appellant ex-parte by the
appellate court does not reflect that such procedure has been adopted by the
court below. As such declaring the appellant ex-parte itself was illegal which
vitiates the entire proceedings taken on after declaring the appellant ex-parte.
Thus, this Court finds that the learned appellate court has not processed the
case in consonance with the provisions of Order V rule 17 and 19 CPC and
thus the declaration of appellant ex-parte is absolutely illegal.
NEUTRAL CITATION NO. 2025:MPHC-JBP:26832
14. The appellate Court while dealing with the application under Order 41 Rule
21 CPC has lost sight of the aforesaid fact and provisions of law and only on
theoretical grounds of service has opined that service has been affected in
accordance with law and, therefore, the application under Order 41 Rule 21
CPC read with section 5 of the Limitation Act has been dismissed.
15. As per Article 123 of Limitation Act, 1963, thirty days time has been
prescribed to file an application to set aside a decree passed ex parte or
to rehear an appeal decreed or heard ex-parte from the date of decree or
where the summons or notice was not duly served, when the applicant
had knowledge of the decree.
16. It is seen from the record that as the service was not affected in accordance
with law there was no reason for the appellant to know that such proceeding
has been initiated against the appellant. Therefore his statement to the effect
that he came to know in regard to ex-parte decree on service of summons of
dispossession seems to be bonafide. Thus, the learned court below has erred
in dismissing the application under section 5 of the Limitation Act.
17. Reliance placed by the respondent in the order passed in the case of Mst.
Bhabia Devi Vs. Permanand PD. Yadav reported in (1997) AIR (SC)
1919 is misplaced. The facts of the said case are distinguishable on the facts
that in that case the evidence of process server was relied to come to the
conclusion that the petitioner in that case refused to sign and put his thumb
while dealing with the issue of ex-parte decree.
18. Thus, from the aforesaid analysis of the fact and enunciation of law in the
case of Kunja (supra), Baijnath Mishrilal Kachhi (supra) and Shashi
(supra), the appeal of the appellant succeeds and is hereby allowed. The
impugned order dated 19.7.2024 passed by Principal District Judge Bhopal in
M.J.C.No.228/2024 is hereby set aside. The matter is remanded back to the
Court of Principal District Judge, Bhopal for rehearing the matter by giving
NEUTRAL CITATION NO. 2025:MPHC-JBP:26832
due opportunity of hearing to the appellant/defendant. Both the parties are
directed to appear before the appellate court 28.7.2025.
19. Record of the court below be returned back for further adjudication.
20. No order as to cost.
(DEEPAK KHOT)
JUDGE
HS Digitally signed by HEMANT SARAF
HEMAN
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T SARAF
c, postalCode=482001, st=Madhya
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serialNumber=44B85EDB5491F85DB4FBA
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Date: 2025.06.20 19:13:42 +05'30'
