Citation: AIR1984Cal82, 87CWN1100, 87CWN1100,AIR 1984 Cal 82
IN THE HIGH COURT OF CALCUTTA
Decided On: 23.08.1983
Appellants: Teharoonchand
Vs.
Respondent: Surajmull Nagarmull
Vs.
Respondent: Surajmull Nagarmull
Hon'ble Judges/Coram:
Anil Kumar Sen and S.N. Sanyal, JJ.
Civil - eviction - Order 5 Rule 11 of Code of Civil Procedure, 1908 - appeal made against ex parte decree on ground that notice was not served - Trial Court and Appellate Court both dismissed petition on ground of limitation - whether notice was served upon appellant - as regards registered post registered cover showed that address was not found on different occasion - only when Court is satisfied from material on record that there was reason to believe that defendant is keeping out of way for purpose of avoiding service or that for any other reason summons cannot be served in ordinary way, only then Court will be entitled to serve summon under Order 5 Rule 20 - all these questions did not properly considered by Trial Court - as a result Court acted irregularly and without jurisdiction - there was no due service of summons and therefore application not barred by limitation.
Ratio decidendi;“Before issuing summons under Order 5, Rule 20 of the Code, the Court
is to be satisfied that the defendant is keeping out of the way for the
purpose of avoiding service, or that for any other reason summons
cannot be served in the ordinary way. Before such satisfaction, the Court
has to consider the case carefully having regard to the nature of the
earlier attempts made for the service of summons. Mere assertion of the
plaintiff in this respect to attract the provisions of Order 5 Rule 20 of the
Code will not be enough. Only when the Court is satisfied from the
materials on record 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 summons cannot be served in the ordinary way, the
Court will be entitled to order service of summons under Order 5, Rule
20 of the Code”.
1. Petitioner Tehroonchand's application (Misc. Case No. 17 of 1981) under Order 9, Rule 13 of the Civil P. C. (hereinafter referred to as the 'Code') for setting aside the ex parte decree in Title Suit No. 264 of 1978 was dismissed by the learned Munsif, 2nd Court, Alipore on Aug. 31, 1982, The appeal (Misc. Appeal No. 545 of 1982) preferred by the petitioner was dismissed by the learned Additional District Judge, 4th Court, Alipore on Feb. 12, 1983. Being aggrieved, the petitioner has preferred the present revisional application.
2. The opposite party Messrs. Surajmull Nagarmull as plaintiff filed Title Suit No. 264 of 1978 for eviction of the petitioner. The said suit was decreed ex parte on Mar. 25, 1980. On Feb. 13, 1981 petitioner filed an application under Order 9, Rule 13 read with Section 151 of the Code alleging that no summons had been served upon him. He came to know of the ex parte decree on Feb. 12, 1981. Petitioner prayed for setting aside the decree. In the written objection the opposite party contended that summons had been duly served on the petitioner and as the petitioner failed to appear the ex parte decree was passed against him. The opposite party further contended that the petitioner resisted the Court bailiff when the latter went to deliver possession on June 17. 1980. As such the petitioner was at least aware of the ex parte decree from the said date. The application was barred by limitations.
3. The learned Munsif held that summons was served upon the petitioner and he had failed to prove that he was prevented by sufficient cause from appearing when the suit was called on for hearing. The application was also barred by limitation. On appeal, the learned Additional District Judge found that the petitioner came to know of the ex parte decree on June 17, 1980 and the application was consequently barred by limitation.
4. Petitioner has challenged the said decision in the present revisional application. The revisional application is being heard on contest after notice to the opposite party.
5. Mr. B. N. Sen, learned counsel for the petitioner, has argued that the records would show that there was no service of summons. The Court was not satisfied with the service by ordinary process and also through registered post. The plaintiff-opposite party was asked to take steps for better service. In the circumstance the substituted service under Order 5, Rule 20 of the Code on the prayer of the plaintiff cannot be considered to be service in accordance with law as no ground existed for invoking the provisions of Order 5, Rule 20 of the Code. It has been further contended by Mr. Sen that the evidence regarding the attempt of the bailiff to deliver possession on June 17, 1980 and the alleged resistance by the petitioner cannot be relied upon in view of material discrepancies. The finding that the petitioner became aware of the decree On June 17, 1980 is not supported by the evidence on record. According to Mr. Sen, there was no reason, in the circumstances of the present case, why the petitioner would not come to court earlier had he been aware of the decree. The petitioner camp to know of the decree on Feb. 12, 1981 and immediately rushed to court and filed the application on Feb. 13, 1981.
6. Mr. Roy Chowdhury, learned counsel for the opposite party, has submitted that the petitioner was avoiding the service of summons and recourse had to be had under Order 5, Rule 20 of the Code for service. Mr. Roy Chowdhury contends that under the law substituted service is as effectual as personal service and as such service of summons under Order 5, Rule 20 of the Code was valid. It has been further argued that there is clear finding of the fact that the petitioner resisted the execution of the decree on June 17, 1980 and he thus came to know of the ex parte decree on that date. The application was clearly beyond time. The only object of the petitioner is to delay the execution of the decree as long as possible,
7. On May 18, 1978 the plaintiff filed a suit for the eviction of the defendant, a monthly tenant, on the ground of default and also on the ground that the defendant, without the knowledge and consent of the plaintiff, had demolished the verandah and made unauthorised constructions. The summons was returned after service by affixation but the learned Munsif did not consider the service to be satisfactory and asked the plaintiff to take steps. The plaintiff's prayer for service by registered post was accepted. A registered cover was returned with the remark "Not claimed"; as the defendant did not appear, the suit was fixed on Aug. 3, 1979 for ex parte hearing. On that date the suit was taken up for ex parte hearing. The learned Munsif, on perusal of the record, directed the plaintiff to take steps for better service for ends of justice. It appears that service by registered post was also not considered satisfactory. The plaintiff made application for substituted service and the prayer was allowed. Summons was returned after service under Order 5. Rule 20 of the Code. As the defendant did not appear, the suit was decreed ex parte on Mar. 25, 1980. The plaintiff put the decree into execution on May 27, 1980 in Title Execution Case No. 29 of 1980. The Process Server returned the writ unexecuted with the report that on June 17, 1980 at about 8 a.m. when he went to deliver possession he was obstructed by the judgment-debtor. The plaintiff filed an application under Order 21, Rule 97 of the Code on July 24, 1980 but the said application was dismissed as it had been filed after the lapse of 30 days of the obstruction. The plaintiff filed another execution case being No. 6 of 1981 on Jan. 28, 1981 for delivery of possession. Before the writ could be executed, the defendant filed the application under Order 9. Rule 13 of the Code on Feb. 13, 1981.
8. In the instant case, the learned trial court did not consider it fit to proceed ex parte on the basis of summons alleged to have been served in accordance with Order 5, Rule 17 of the Code and also on the basis of the service by registered post. Having regard to the materials on record, we are of the opinion that the learned trial court acted rightly when by the order dated Aug. 3, 1979 it directed the plaintiff to take steps for service. Order 5, Rule 17 of the Code lays down that 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 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 then serve the summons by affixation. Before service under Order 5, Rule IV of the Code, the serving officer has to make proper enquiries to see that renditions necessary to effect service under the said Rule exist. Return (Exhibit 'C') in the instant case falls far short of the requirements and as such the learned Munsif was quite justified in not placing any reliance on it.
9. As regards service through registered post, the registered cover shows that the addressee was not met on different occasions. There was thus no tender of the registered cover to the addressee. It is true that under the law service of summons under Order 5, Rule 20 of the Code shall be as effectual as if it had been made on the defendant person-ally. Before issuing summons under Order 5, Rule 20 of the Code, the Court is to be satisfied that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason summons cannot be served in the ordinary way. Before such satisfaction, the Court has to consider the case carefully having regard to the nature of the earlier attempts made for the service of summons. Mere assertion of the plaintiff in this respect to attract the provisions of Order 5, Rule 20 of the Code will not be enough. Only when the Court is satisfied from the materials on record 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 summons cannot be served in the ordinary way, the Court will be entitled to order service of summons under Order 5, Rule 20 of the Code. In the instant case, all these questions did not appear to have been properly considered before issue of the summons under Order 5, Rule 20 of the Code. The learned trial court has failed to exercise jurisdiction properly. In this matter the learned appellate court has not come to any finding regarding the service of summons.
10. The learned appellate court dismissed the application of the petitioner only on the ground of limitation as, according to it, the petitioner came to know of the ex parte decree on June 17, 1980, aS regards the date of knowledge, the discrepancies in the evidence of the witnesses -- O. P. W. 1 Tarapada Ganguly (Process Server) and O. P. W. 2 Ajit Kumar Chakraborty (employee of the opposite party) -- with reference to the report of the process server regarding the obstruction to the execution of the writ for delivery of possession should have been properly considered. In the report (Ex. E) the process server has stated that on June 17, 1980 at about 8 a.m. when he went to deliver possession, he was obstructed by the petitioner in presence of O. P. W. 2. In the certified copy of Ext. E the figure '8' was wrongly written as '4'. In his evidence O. P. W. 1 Tarapada Ganguly at first stated that he went at 8 a.m. Thereafter he stated that due to mistake he told the time as 8 a.m. O. P. W. 2 Ajit Kumar Chakraborty in his evidence stated that obstruction to deliver possession took place in his presence at 4 p.m. O. P. W. 1 the petitioner denied service of summons. He also denied that he obstructed the execution of the decree. He stated that he came to know of the decree on 12-2-1981 and made searches in court and thereafter filed the application on 13-2-1981. In the circumstances, we are of the opinion that the learned courts below have acted with material irregularity in the exercise of jurisdiction and the petitioner has been prejudiced thereby. There was no due service of summons and the application was not barred by limitation. The petitioner is entitled to succeed.
11. Having regard to the materials on record, we are of the view that the decisions of the learned courts below cannot be sustained. The revisional application is allowed on contest but without costs. The impugned orders of the learned courts below are set aside and the petitioner's application under Order 9, Rule 13 of the Code is allowed. The ex parte decree be set aside and the suit be restored to file. The defendant will file written statement within three weeks of the arrival of the records in the trial court or within such time as the learned Munsif may allow. The learned Munsif will try to dispose of the suit as early as possible. Let the records be sent below forthwith.
Anil K. Sen, J.
I agree.
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