Punjab-Haryana High Court
Sushil Kumar & Anr vs M/S Modi Spinning & Wvg Mills ... on 1 December, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
108
CR-8468-2018(O&M)
Date of decision: 01.12.2022
SUSHIL KUMAR & ANR ..Petitioners
Versus
M/S MODI SPINNING & WVG MILLS
COMPANY LTD & ORS ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Animesh Sharma, Advocate
for the petitioners.
ANIL KSHETARPAL, J(Oral)
The petitioners (defendant No.2 and 3 in the suit) assail the
correctness of orders dated 20.05.2015 and 16.08.2018. The petitioners'
application under Order IX Rule 13 of the Code of Civil Procedure, 1908
(hereinafter referred to as the 'CPC') to set aside the ex parte judgment and decree
was dismissed on 20.05.2015. The first appeal filed by the petitioners has also
been dismissed on 16.08.2018. It has come on record that a suit for recovery of
Rs.9,77,450.30/- was ex-parte decreed on 02.03.2006. Defendant No.3 entered
appearance through Sh. Rao Nisar, Advocate, who continued to appear for a
period of one and a half (1 ½) year on the strength of memo of appearance,
however, thereafter, he stopped appearing. It has also come on record that on the
filing of the suit, notice was issued to the defendants through the normal process
adopted by the Courts. Subsequently, notice was sent through registered cover
with acknowledgment due but never received back served or otherwise. The
Court, in the facts of the case, ordered publication of notice in The Tribune, a
daily newspaper having wide circulation in the area. Despite that, defendant No.2
still did not enter appearance. There is no dispute about the correctness of the
address of the defendants in the suit as they have been served in the execution
petition on the same address.
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CR-8468-2018(O&M) -2-
This Bench has heard the learned counsel representing the
petitioners and with his able assistance perused the paperbook.
The learned counsel representing the petitioners has, vehemently,
contended that the Court, while ordering service of notice through substituted
service, did not record its satisfaction as required under Order V Rule 20 of the
CPC. He relies upon the judgment of the Supreme Court in Sushil Kumar
Sabharwal Vs.Gurpreet Singh and others (2002) 5 SCC 77 to support his
argument.
In this case, the aforesaid judgment shall not come to the rescue of
the petitioner because defendant No.3 is a partner along with the defendant No.2,
entered appearance through counsel. His counsel continued to appear for a period
of one and a half (1 ½) years. Moreover, once the registered notices with
acknowledgment due have been sent at the correct address of the petitioners and
not received back for a period of 30 days, there is a presumption of the service of
notice. In the aforesaid case, the Supreme Court has laid down that in the case of
report of refusal to accept the summons then, the process served is required to
affix a copy of the summons and the plaint on a conspicuous part of the house of
the defendant.
Order V Rule 20 of the CPC is divided in two parts. Though the first
part requires the Court to record a satisfaction that the defendants are avoiding
service, however, the second part provides that the Court can pass the order for
any other reason after finding that the summons cannot be served in the ordinary
manner.
Keeping in view the aforesaid facts, this Court is of the considered
view that the petitioners have failed to make out a case for interference in the
exercise of revisional jurisdiction of this Court particularly when both the Courts
below have refused to set aside the ex-parte decree.
Hence, dismissed.
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CR-8468-2018(O&M) -3-
All the pending miscellaneous applications, if any, are also disposed
of.
December 01st, 2022 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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