Rajasthan High Court - Jodhpur
Sajwar Khan vs Gaje Singh on 1 August, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:31595]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 944/2016
Sajwar Khan, s/o Ismail Khan, age about 66 years, permanent
Village Karakwal, Tehsil Merta, District Nagaur, residing at House
No. E-28, Vivekanand Nagar, Shastri Nagar, Ajmer
----Appellant
Versus
Gaje Singh, s/o Shri Narayan Singh, respondent of Village
Nimbola, Tehsil Jaitaran, District Pali.
----Respondent
For Appellant(s) : Mr. Vishal Sharma
For Respondent(s) : Mr. Ranjeet Joshi, Sr. Advocate,
assisted by Mr. Abhijeet Joshi and
Mr. Kapil Bissa
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment / Order
Reserved on: 25/07/2024
Pronounced on: 01/08/2024
1. The present civil misc. appeal has been filed under Section
104 read with Order 43 Rule 1 of the Code of Civil Procedure,
1908 ('CPC') assailing the order passed by learned District Judge,
Merta in Civil Misc. Application No. 91/2011 whereby the
application under Order 9 Rule 13 of CPC, filed by the
appellant/applicant has been dismissed. The appellant has also
prayed for allowing his application under Order 9 Rule 13 as well
as his application for condonation. It is also prayed that the cost of
the appeal and other damages be awarded from the respondents
to the appellant/applicant. Certain other ancillary relief(s) have
also been sought by the appellant/applicant.
[2024:RJ-JD:31595] (2 of 10) [CMA-944/2016]
2. Briefly stated, the facts of the case are that the
respondent/plaintiff filed a suit (Annex.1) for recovery of Rs.
1,18,000/- along with interest against the appellant/defendant on
account of the loan taken by the appellant and the promisory note
signed thereto. After the learned Trial Court issued summons to
the appellant/defendant to the suit, the appellant preferred an
application under Order 7 Rule 11 of the CPC which was allowed
on 14.12.2000 (Annex.2) and the suit (Annex.1) filed by the
respondent/plaintiff stood abated. Thereafter, the
respondent/plaintiff filed an application for restoration of the suit
on 30.10.2004, which came to be allowed by the learned Trial
Court vide on the same day, without issuing summons to the
appellant/applicant.
3. Furthermore, learned Trial Court directed the
respondent/plaintiff to file two sets of summons for service upon
the appellant/applicant. The service of summons was not complete
since the summons were returned on 04.12.2004, therefore, the
learned Trial Court on 18.12.2004 again ordered for filing
summons. Subsequently, on 07.01.2005, the summons were
returned with a note that the appellant/defendant along with his
family had started residing in Ajmer. Thus, the learned Trial Court
directed the respondent/plaintiff to file summons to the fresh
address of the respondent/plaintiff. The respondent/plaintiff,
thereafter filed an application under Order 5 Rule 20 of the CPC
for substituting service by publishing the summons in the news
paper.
4. Thereafter, the respondent/plaintiff published summons in
the newspaper, Dainik Navjyoti of District Nagaur edition on
[2024:RJ-JD:31595] (3 of 10) [CMA-944/2016]
05.02.2005, and on account of non-appearance of the
appellant/defendant, ex-parte proceedings were initiated against
the appellant/defendant on 17.05.2005, which culminated in the
judgment and decree passed by the learned Trial Court vide order
dated 18.02.2005 (Annex.3).
5. Subsequently, the appellant/defendant filed an application
under Order 9 Rule 13 of CPC on 19.10.2011 (Annex.4) and a
separate application on 13.05.2015 (Annex.5) under Section 5 of
the Limitation Act, 1963 ('Limitation Act') for condoning the delay
in filing the application under Order 9 Rule 13 of CPC. In response
to the said application (Annex.4), the respondent/plaintiff filed a
reply (Annex.6). After hearing the parties, the learned Tribunal
dismissed the application filed by the appellant/defendant under
Order 9 Rule 13 vide order dated 04.03.2016 (Annex.8).
6. Aggrieved of the order passed by the learned Trial Court vide
order dated 04.03.2016 (Annex.8), the appellant/ defendant has
preferred this appeal.
7. Learned counsel for the appellant submitted that the learned
Trial Court has erred in dismissing the application filed by the
appellant/applicant under Order 9 Rule 13 of CPC, since the
respondent/plaintiff made no efforts for service of summons to the
appellant/applicant. He submitted that admittedly, the fact that
the appellant/applicant's change of residence from Village
Karakwal to Ajmer was in the knowledge of the
respondent/plaintiff and despite this fact the summons were
published under Order 5 Rule 20 of the CPC, in the daily news
paper, Dainik Navjyoti Nagaur edition, instead of Ajmer edition.
[2024:RJ-JD:31595] (4 of 10) [CMA-944/2016]
8. Learned counsel for the appellant/ defendant also submitted
that Order 5 Rule 20(1-A) clearly stipulates the requirement of
substituted service, and summons by way of advertisement in the
newspaper which shall be a daily newspaper circulating in the
locality in which the defendant is last known to have actually
resided. He further submitted that admittedly vide order-sheet
dated 07.01.2005, it has come to the knowledge of the
respondent/plaintiff that the appellant/ defendant is residing in
Ajmer and thus there was no reason for publishing the summons
in the daily newspaper, Nagaur edition. He thus submitted that
despite non-compliance with the statutory requirements
mentioned under Order 5 Rule 20 (1A) of CPC, the learned Trial
Court initiated the proceedings ex-parte and therefore, the service
of summons deserves to be set aside. Order 5 Rule 20 of CPC is
reproduced as under:
"ORDER V
Issue and service of summons
20. Substituted service.--
(1) Where the Court is satisfied that there is reason to
believe that the defendant is keeping out of the way for the
purpose of avoiding service, or that for any other reason the
summons cannot be served in the ordinary way, the Court
shall order the summons to be served by affixing a copy
thereof in some conspicuous place in the Court-house, and
also upon some conspicuous part of the house (if any) in
which the defendant is known to have last resided or carried
on business or personally worked for gain, or in such other
manner as the Court thinks fit.
[(1A) Where the Court acting under sub-rule (1) orders
service by an advertisement in a newspaper, the newspaper
shall be a daily newspaper circulating in the locality in which
the defendant is last known to have actually and voluntarily
resided, carried on business or personally worked for gain.]
[2024:RJ-JD:31595] (5 of 10) [CMA-944/2016]
(2) Effect of substituted service.--Service substituted by
order of the Court shall be as effectual as if it had been
made on the defendant personally.
(3) Where service substituted, time for appearance to be
fixed.--Where service is substituted by order of the Court,
the Court shall fix such time for the appearance of the
defendant as the case may require."
9. Learned counsel for the appellant/defendant further
submitted that the learned Trial Court without recording its
satisfaction under Order 5 Rule 20 of CPC, dismissed the
application filed by the appellant/applicant under Order 9 Rule 13
of the CPC and thus, the impugned order dated 04.03.2016
(Annex.8) deserves to be set aside. He also submitted that the
learned Trial Court erred in coming to the conclusion that the
process server reported that the appellant/applicant had refused
to accept the notice under Order 21 Rule 22 of the CPC is also not
proper since, the appellant/defendant was not residing in the
village and was residing at Ajmer.
10. Learned counsel for the appellant/applicant relied upon the
judgment passed by the Coordinate Bench of this Court in the
case of Shaitan Singh v. UCO Bank reported in 2004 (5) WLC
614, wherein it has been categorically observed that the
substituted service of summons by of way of publishing in a
newspaper has to be done in accordance with Order 5 Rule 20
(1A) of CPC and that, the newspaper shall be a daily newspaper,
being circulated in the locality the defedant had last resided,
carried on business or personally worked for gain. The relevant
para is reproduced as under:
"8. Then coming to the question of special circumstances,
without going into the other contentions, and factual aspect,
suffice it to say that vide order dated 5.4.1991, the service of
[2024:RJ-JD:31595] (6 of 10) [CMA-944/2016]
the petitioner was ordered to be effected by substituted
service, and a look at the provisions of Or. 4 Rule CPC shows
that according to sub-rule (1-A), where the Court acting under
sub-rule (1) 30 orders service by an advertisement in a
newspaper, the newspaper shall be a daily newspaper,
circulating in the locality in which the defendant is last known
to have actually, and voluntarily resided, carried on business,
or personally worked for gain. In the present case, summon
has been published in the newspaper 'Janarndata' in its issue
dated 1.5.1991, a copy whereof is available on record at page
A49/1. A look at that paper shows that it is a fortnightly
paper."
11. Per contra, learned counsel for the respondents submitted
that while the appellant/applicant had changed his residence from
village Karakwal to Ajmer, the same was not in the knowledge of
the respondent/plaintiff and therefore under the given
circumstances, the respondent/plaintiff in the natural course of
service, would serve the said summons at a place where the
appellant/defendant last resided, which was Village Karakwal in
the present case. He thus submitted that the respondent/plaintiff
had followed the due procedure under Order 5 Rule 20 of CPC by
publishing the summons in the daily newspaper, Nagaur edition
since the appellant/plaintiff had been last residing at Village
Karawal, Merta, Nagaur.
12. Learned counsel for the respondent/plaintiff also submitted
that the appellant/applicant, even after being present before the
learned Trial Court, after his change of residence as averred by
him, did not provide for the correct address at which he was then
residing in Ajmer.
13. Learned counsel for the respondent/plaintiff further
submitted that the said irregularity has occurred on the part of the
[2024:RJ-JD:31595] (7 of 10) [CMA-944/2016]
appellant/applicant and not the respondent/plaintiff and thus, the
appellant/applicant cannot benefit from his own wrong. He also
submitted that not only the application under Order 9 Rule 13 of
CPC, but also the application under Section 5 of the Limitation Act
has been filed with a delay of 4 years, and thus, the entire
proceedings have been delayed by 19 years, without any sufficient
cause proved by the appellant/applicant. He thus submitted that
the said application filed by the respondent/plaintiff under Order 9
Rule 13 is beyond the period of limitation.
14. Heard learned counsel for the parties, perused material
available on record and judgments cited at the Bar.
15. This Court finds that the learned Trial Court has rightly
observed that that vide order-sheet dated 07.01.2005, it has
come to the knowledge of respondent/plaintiff that the
appellant/applicant has been residing in Ajmer, however, there
was no address mentioned. It is also seen that even after
appearing before the learned Trial Court, there was no information
given by the respondent/plaintiff with respect to his new
registered address and therefore, the respondent/plaintiff did not
have the appellant/applicant's new address, except the address
where the appellant/applicant last resided, i.e. in Village Karakwal,
Merta, Naguar. It was thus, rightly observed by the learned Trial
Court that the service of summons by way of substituted service
through publishing in a newspaper, was complete when the
respondent/plaintiff, published the summons in the daily
newspaper, Dainik Navjyoti, Nagaur edition.
16. This Court further finds that the learned Trial Court has
rightly observed that according to Section 123 of the Limitation
[2024:RJ-JD:31595] (8 of 10) [CMA-944/2016]
Act, the limitation period of 30 days is to be calculated from the
date of receipt of the summons, which was duly completed vide
substituted service. It is also seen that in the present case, when
the learned Trial Court, passed the ex-parte decree, vide order
dated 18.02.2005 (Annex.3), however the appellant/applicant
chose to file an application under Order 9 Rule 13 of CPC on
19.10.2011 (Annex.4), i.e. after 6 years of the passing of the
decree dated 18.02.2005 (Annex.3).
17. This Court also finds that with respect to the execution of the
said decree in Case No. 87/2011 which is pending, notice of
appearance under Order 21 Rule 22 has been sent to the
appellant/applicant which were issued on 07-10-2010 and
according to process server report dated 01.10.2010, when the
said summons were tendered to the appellant/applicant, he
refused to accept it after reading it. Thus, it is was rightly
observed by the learned Trial Court from the said report that even
on 01.10.2010, this decision was clearly and definitely known to
the defendant and even then within 30 days, the application has
not been presented and though reason for delay was stated in the
application, however the same was not appropriate and sufficient.
It was thus, rightly observed by the learned Trial Court that the
application of Section 5 Limitation Act has also been submitted on
the same grounds on 13-03-2015 (Annex.5), 4 years after
presenting the original application.
18. Upon perusal of the record, this Court also finds that the
application filed by the appellant/applicant under Order 9 Rule 13
of CPC on 19.10.2011 bears the address of Village Karakwal,
Merta and not the new registered address of Ajmer, as submitted
[2024:RJ-JD:31595] (9 of 10) [CMA-944/2016]
by the appellant/applicant during the pleadings. Thus, this
argument of the appellant/applicant that the summons had not
been served duly under Order 5 Rule 20, even when the
appellant/applicant was not residing in Village Karakwal, Merta,
Nagaur, is devoid of merit since this merely appears as an
afterthought. If the appellant/applicant has been pressing on the
issue of the change of residence, then it is only plausible that the
appellant/applicant filed the application under Order 9 Rule 13 of
CPC, which was also filed after 6 years of the passing of the
decree dated 18.02.2005 (Annex.3) with his changed and correct
address of Ajmer.
19. Thus, upon perusal of the record, and the findings of the
learned Trial Court, it is clear that the conduct of the defendant
has been negligent and causing delay and the entire factual
incident at least makes it clear that he has been delaying the case
repeatedly and the original suit has been delayed for almost 19
years.
20. Therefore, in the light of the provisions, judgment cited and
the record perused, this Court finds that the argument of the
appellant/applicant that the summons had not been served duly
on account of his change of address, for which he submitted
various residential proofs, merely seems to be an afterthought,
inasmuch as even after appearing once before the learned Trial
Court on 07.01.2005, the appellant/applicant, did not provide the
his changed registered address of Ajmer, nor has he mentioned his
changed registered address in the application filed by him under
Order 9 Rule 13 of the CPC, on 19.10.2011 (Annex.4).
[2024:RJ-JD:31595] (10 of 10) [CMA-944/2016]
21. The present misc. appeal is dismissed. All pending
applications, including stay application also stand disposed of.
Record of the Tribunal be sent back forthwith.
(DR. NUPUR BHATI),J
51-/devesh/-
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