Banwari Lal vs Sarita Bishnoi
2022 Latest Caselaw 5093 Raj

(1 of 9) [CR-62/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S. B. Civil Revision Petition No. 62/2021

Banwari Lal S/o Nathu Ram, aged about 56 years, R/o House No. 81, Bhoop Colony, SSB Road, Sri Ganganagar

----Petitioner Versus

1. Smt. Sarita Bishnoi widow of Ripudaman Singh,

2. Nishant Bishnoi S/o Ripudaman Singh, Both are residents of House No. 1, Ripudaman House, Near Durgesh Cinema, Sri Ganganagar

----Respondents

For Petitioner(s) : Mr. S.L. Jain For Respondent(s) : Mr. S.R.Godara

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Order

April 5, 2022

The instant civil revision petition under Section 115 of the

Code of Civil Procedure, 1908 has been preferred by the

petitioner-defendant of Civil Original Suit No. 63/2007, whose

application filed under Order IX, Rule 13 of C.P.C. for setting aside

ex-parte Judgment & Decree dated 03.07.2009 was dismissed by

the Additional Civil Judge No. 2, Sri Ganganagar vide Order dated

15.09.2017 passed in Civil Misc. Case No. 76/2011 (Banwari Lal

Vs. Smt. Sarita Bishnoi & ors.). The appeal filed by the

defendant-petitioner against the same was also dismissed by the

Additional District Judge No. 2, Sri Ganganagar vide Order dated

04.09.2021 passed in Civil Misc. Appeal No. 24/2017 (Banwari Lal

Vs. Smt. Sarita Bishnoi & anr.).

(2 of 9) [CR-62/2021]

The brief facts of the case are that the plaintiffs (respondents

herein) filed an eviction suit against the defendant - Banwari Lal

(petitioner herein) on 18.09.2007. On 29.09.2007, the summon

was issued to the defendant for 17.11.2007, which was returned

unserved with the report that the defendant was not found in the

house, however, his adult son was found present, who refused to

receive the summon, then the same was affixed on the house of

the defendant. On 04.01.2008, without assigning any reason for

not relying upon the said report, the trial court again issued

summon to the defendant Banwari Lal for 16.02.2008, which was

returned unserved with the report that the house of the defendant

was found locked. On third occasion, the summon issued for

09.05.2008, which was returned with the following report :-

"Jheku th] jkedqekj lokj D.J. dksVZ Jh xaxkuxj esa gYQh;k fjiksVZ djrk gwW fd eSus fn- [email protected]@08 dks ntZ irs ij tkdj eSaus Jh cuokjhyky s/o Jh uRFkwjke fo"uksbZ dks ryk"k fd;k edku ij Jh cuokjhyky dh iRuh feyh mlus viuk deyknsoh crk;k Jh cuokjhyky dks dgh tkuk o "kkehy jguk crk;k uksVhl izkIrh ds fy, dgk rks uksVhl izkIrh ls bUdkj fd;k bUdkjh djus ij uksVhl e; okn udy [kqys edku ij pLik fd;k ekSds ij fdlh us xokgh ugha fd iRuh }kjk bUdkjh ij pLik fjiksVZ Jheku th fd lsok esa is"k gSA"

On the basis of above report, service of summon upon the

defendant was treated sufficient and on account of non-

appearance of the defendant, ex-parte proceedings were initiated

against him on 09.05.2008. Afterwards, the case was adjourned

for six times for recording ex-parte evidence of the plaintiffs. On

18.04.2009, ex-parte evidence was recorded and after hearing the

arguments on 15.05.2009, ex-parte decree was passed against

the defendant on 03.07.2009. Aggrieved with ex-parte judgment

and decree, the defendant filed an application under Order IX,

(3 of 9) [CR-62/2021]

Rule 13 read with Section 151 of C.P.C. on 19.11.2011 alleging

that report of the process server was false. The defendant came

to know about ex-parte decree on 08.11.2011 when Najir of the

Court tried to proceed against him. The application was replied by

the plaintiffs. The trial court after recording the evidence of both

the parties, dismissed the application of the defendant filed under

Order IX, Rule 13 of C.P.C. vide Order dated 15.09.2017. The trial

court relied upon the report of the process server and found that

there was no irregularity in the service of summon against the

defendant. The objection of the defendant-petitioner to the effect

that house number was not mentioned on the summon, was not

accepted. The trial court observed that wife of the defendant was

Ward Member since the year 2009 and the name of the colony

was specifically mentioned on the summon. The trial court also

took note of the previous reports on the summons issued against

the defendant. Aggrieved with the order of rejection of the

application, the defendant filed an appeal before the appellate

court bearing Civil Misc. Appeal No. 24/2017, which was also

dismissed on 04.09.2021, which is impugned in this revision

petition.

Heard learned counsel for the parties and perused the orders

impugned as well as record of the courts below.

Learned counsel for the petitioner while relying upon the

judgments rendered by the Hon'ble Punjab & Haryana High Court

in the case of Dev Raj Vs. Harcharan Singh reported in 1988 1

RCR (Rent) 576; this Court at Jaipur Bench in the case of

Bhajan Singh Vs. M/s Shri Ganesh Building Material Store,

Khairthal Mandi reported in RLW 1997(3) Raj 1719 and the

Hon'ble Supreme Court in the case of Sushil Kumar Sabharwal

(4 of 9) [CR-62/2021]

Vs. Gurpreet Singh & Ors. reported in JT 2002 (4) SC 489,

contended that the process server did not obtain the signatures of

the witnesses on the report made upon the summon. The house

number of the defendant was not mentioned in the summon. No

persons identified the house of the defendant. Learned counsel

drew attention of this Court towards some contradictions occurred

in the cross-examination of the witnesses produced on behalf of

the plaintiffs-respondents. He submitted that in the evidence, it

was averred that Sarita and Chandra Shekhar were present at the

time of affixing the copy of the summon on the house of the

defendant, whereas, the process server did not aver that anybody

was present on the spot. He further submitted that the

compliance of the provisions of Order V, Rule 15 & 17 of C.P.C.

was not made. Relying upon the judgments referred above,

learned counsel for the petitioner submitted that the impugned

orders passed by both the courts below were illegal, improper and

against the provisions of law, hence, liable to be set aside.

On the other hand, learned counsel for the respondents

submitted that the colony, where house of the defendant was

situated, was not a big colony. The wife of the defendant was well

known lady being Ward Member of the area. There was

concurrent findings recorded by both the courts below, in which no

illegality was committed. The defendant (petitioner herein)

always evaded the service of summon to be served upon him. On

previous two occasions also, he evaded service of summons.

There was no reason to disbelieve the statement of the process

server, who stated that the defendant was not found in the house,

his wife who was found, refused to accept the summon.

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Thereafter, the same was affixed on the house and in the report, it

was also mentioned that nobody became a witness on the report.

Perused the record of the courts below and considered the

arguments advanced by learned counsel for the parties.

In the case of Dev Raj (supra), the Hon'ble Punjab &

Haryana High Court set aside ex-parte order considering the fact

that the process server had no knowledge of the locality or

identity of the house where the petitioner resided and held that

before recording the report of refusal of summons, it is incumbent

on the Process Server to ascertain not only the identity of the

party but also the place of its residence. For this purpose, the

assistance of a resident of the locality in the normal course,

should be sought for.

In the case of Bhajan Singh (supra), a coordinate Bench of

this Court at Jaipur Bench held that according to Order V, Rule 17

of C.P.C., it was incumbent upon the process server to explain the

circumstances under which the service of summons was effected

and it was necessary for him to mention the names and addresses

of the persons if any, by whom the house was identified and in

whose presence the copy of the summon was affixed.

In the case of Sushil Kumar Sabharwal (supra), the Hon'ble

Apex Court did not find sufficient service of summons on the

opposite side on the grounds that firstly, on the alleged refusal by

the defendant, either he did not affix a copy of the summons and

the plaint on the wall of the shop or if he claims to have done so,

then the endorsement made by him on the back of the summons

does not support him, rather, contradicts him. Secondly, the

tendering of the summons, its refusal and affixation of the

summons and copy of the plaint on the wall should have been

(6 of 9) [CR-62/2021]

witnessed by person who identified the defendant and his shop

and witnessed such procedure. In that case, the Hon'ble Apex

Court disbelieved the statement of the process server and ex-

parte proceedings were set aside on the ground of non-service of

summons.

Coming to the facts of the present case, the application

under Order IX, Rule 13 of C.P.C. was based on the ground that

the report of the process server was totally false. No one came to

the house of the defendant to serve the summons on him. The

defendant - Banwari Lal (petitioner herein) in his cross-

examination submitted that he did not complain against the report

of the process server. He did not see the report of the process

server made on the summons. The wife of the defendant -

Banwari Lal admitted in her cross-examination that she was

elected as Ward Member (Parshad) in the year 2009 and

thereafter, she was again elected in the year 2014. She also

admitted that people knew her and her house. The process server

Ramkumar (N.A.W. 3) in his statement submitted that he went to

the house of Banwari Lal. He was not found present in the house.

His wife Kamla Devi was present in the house, who informed that

Banwari Lal was not available in the house. Then, he tendered

summons to her but she refused to accept the same, upon which,

he affixed the copy of the summon on the house. He also stated

that nobody signed as a witness. In cross-examination, he

admitted that on the summons, house number was not

mentioned. However, no suggestion was made to this witness to

the effect that he could not identify the house of the defendant.

This witness denied the suggestion of the defendant that he

affixed the summons on the vacant plot. This witness

(7 of 9) [CR-62/2021]

categorically described the opening of the house. In the

considered opinion of this Court, the courts below did not commit

any error in appreciating the evidence produced by both the

parties. In the present case, there was no dispute regarding

identification of the house. The house of the defendant was well

known, happened to be the house of the Ward Member (Parshad).

In the considered opinion of this Court, there was no mandatory

requirement provided under the provisions of Order V, Rule 17 of

C.P.C. to mention the name and address of the witness, in whose

presence, the copy was affixed. As per the provisions of Order V,

Rule 15 of C.P.C., service can be made on any adult member of

the family, whether male or female, who is residing with him in

case, the defendant is absent from his residence at the time when

the service of summons is sought to be effected on him at his

residence and there is no likelihood of his being found at the

residence within a reasonable time.

As per provisions of Order V, Rule 16 of C.P.C., the person to

whom the summon is tendered, is required to give receipt of the

same. As per provisions of Order V, Rule 17 of C.P.C., when such

aforesaid person refuses to sign the acknowledgment, 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, and shall then

return the original to the Court with an endorsement thereon

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.

(8 of 9) [CR-62/2021]

In the present case, the main contention of the learned

counsel for the petitioner was regarding identification of the house

of the defendant. In the facts and circumstances of the case, the

identification of the house of the defendant was not in dispute. As

earlier discussed, the wife of the defendant was Ward Member

(Parshad) and house was well known. On previous occasion also,

summon could not be served on account of non-availability of the

defendant and on another occasion, the house was found locked.

The above circumstances suggest that the defendant evaded the

service of the summons. The process server was not at fault

when he affixed the copy of the summons on the house, since he

disclosed the circumstances under which he affixed the summons

on the house and could not get signatures of the witnesses. It is

also relevant to mention that the Courts cannot expect from the

process server who is Class IV servant, to make full fledged

compliance of the provisions of Order V, Rule 14 to 17 of C.P.C. As

per proviso to Order IX, Rule 13 of C.P.C. also, the Court shall not

set aside the decree passed ex-parte merely on the ground that

there is an irregularity in the service of summons, if it is satisfied

that the defendant had notice of the date of hearing and had

sufficient time to appear and answer the plaintiff's claim. In the

present case, the service of summons was made on the defendant

on 11.03.2008, whereas, hearing date was fixed as 09.05.2008.

The petitioner failed to disclose the circumstances, in which he

came to know regarding ex-parte decree passed against him. In

this regard, the petitioner neither disclosed that any execution

proceedings were filed against him nor he filed the copy of the

same for perusal of the Courts below to appreciate the fact that he

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had no notice of the summons being served against him or any

proceedings pending against him.

In the result, this Court finds that there is no substance in

this revision petition.

Dismissed accordingly.

(RAMESHWAR VYAS),J

Inder/-

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