I would, next take up the question as to what is the effect of the substituted service under Order V, Rule 20 of the Code of Civil Procedure.Recourse to substituted service under the said rule is to be taken only when the materials are placed before the court to show "that the defendant is keeping out of the way for the purpose of avoiding service". In this case, obviously, there was no such material before the court. Rather the materials placed before the court were that service had been effected on the defendants, both through the court peon regularly and also through registered post. In the circumstances, steps for substituted service under the said rule ought not to have been taken. Further, when substituted service is effected under the said rule and the summonses are published either in the gazette or in some news-paper ordinarily summonses are also affixed in some conspicuous place of the court house and 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. There is no evidence on the record that summonses were served in the suit by affixing copies thereof in some conspicuous place in the court house or upon some conspicuous part of the house, if any, in which the appellants were found to have last resided or carried on business or personally worked for gain.
12. In the case of G. Shanmukhi v. Venkatarami Reddi (AIR 1957 Andh Pra 1 (FB)), it was held that substituted service under Order V, Rule 20 of the Code of Civil Procedure may or may not be "due service" within the meaning of Order IX, Rule 13 of the Code and it will have to be determined by ascertaining whether the representations made to the court by the plaintiff were or were not true, that is to say, whether the defendant could be presumed, in the circumstances, to have had or had not actual knowledge. On the facts and in the circumstances of the case, in our opinion, the appellants had no actual knowledge of the suit and, therefore, the substituted service under Order V, Rule 20 of the Code of Civil Procedure, in our opinion, was not due service within the meaning of Order IX, Rule 13 of the Code of Civil Procedure.
Patna High Court
Ram August Tewari And Ors. vs Bindeshwari Tewari And Ors. on 6 August, 1971
Equivalent citations: AIR 1972 Pat 142
Bench: S P Singh, S P Sinha
1. This Is an appeal by defendants Nos. 11 to 20 against an order dismissing their application under Order IX. Rule 13 of the Code of Civil Procedure. The application was for setting aside an ex parte decree dated the 14th March. 1967, in Partition suit No. 45 of 1965, of the court of the first Subordinate Judge, Gaya. The application was filed on the 17th June, 1967.
2. The case of the appellants was that all the processes in the suit were fraudulently suppressed and they had no knowledge of the suit till the 9th of June, 1967, when they came to know of the suit and the ex parte decree from one Kamta Tiwary (A. W. 1).
3. In their rejoinder, the plaintiff-respondents claimed that the appellants had knowledge of the suit when the summonses in the suit were made over to them by the court peon and again when the registered post-cards were tendered to them by the postal peon. Further, there was also substituted service under Order V, Rule 20 of the Code of Civil Procedure by publishing the summonses in the Bihar Gazette and the appellants must be deemed to have notice of the suit.
4. The court below has disbelieved the case of the appellants that they had no knowledge of the suit and that they came to know of the ex parte decree only on the 9th of June 1967.
5. When we heard the appeal on the 30th of July, 1971, we thought it necessary to examine the original records of partition suit No. 45 of 1965, and called for it. We also wanted to see the plaint of partition suit No. 158 of 1962 of the court of the Munsif of Aurangabad, which was filed by original plaintiff No. 1, plaintiff No. 2 and some of the defendants of the suit for partition of the properties, which are subject-matter of the aforesaid partition suit No. 45 of 1965. Learned counsel for the appellants made over to us a certified copy of the plaint of title suit No. 158 of 1962. We have taken it as additional evidence and marked it as Exhibit 5.
6. From the genealogy, as stated in the Schedule 1 to the plaint of partition suit No. 45 of 1965, it appears that one Rambarat Tewari had two sons, Rambrichh Tewari and Deonarain Tewari Deonarain Tewari had two sons. Gorakh Tewari and Bachhan Tewari. Bachhan Tewari is himself one of the appellants. The other appellants are descendants of Gorakh Tewari and Bachhan Tewari Rambrichh Tewari had five sons. Ramjanam Tewari. Ramprit Tewari. Chandrika Tewari, Mundrika Tewari and Ramnaresh Tewari. Two of them are now dead. Ramjanam, Mundrika and Ramnaresh Tewari are respondents to this appeal. The other respondents are descendants of these five brothers. Partition suit No. 158 of 1962 was instituted by Ramprit Tewari, his son Bindeshwar Tewari (plaintiff No. 2 of the present suit); Ramnaresh Tewari and his sons, and the son of Chandrika Tewary. In that plaint it was stated that the present appellants had half share in the properties in suit, the other half belonging to the plaintiffs of that suit and the other descendants of Rambrichh Tewari. As the Munsif found that he had no pecuniary jurisdiction to try the suit, the plaint was returned for proper presentation. Thereafter, partition suit No. 45 of 1965 was filed at Gaya. This suit was instituted by Ramprit Tewary (since dead) and his son and grand son.
In the plaint of this suit it is claimed that appellants have got only two-seventh share and the five seventh share belongs to the descendants of Rambirichh Tewari. It appears that the property, which is the subject-matter of the suit, and, admittedly belonged to Rambarat Tewari, was sold in execution of a Certificate for arrears of road cess. The purchaser re-conveyed the property and the deed of transfer was executed in the names of Ramprit, Ramjanam, Chandrika Mundrika and Ramnaresh Tewari, the five sons of Rambrichh and Gorakh Tewari and Bachhu Tewari, two sons of Deonarain Tewari. As the re-conveyance was in the names of seven persons, the plaintiffs claimed that the share of the vendees is per capita, i. e., one seventh each. Obviously, the descendants of Rambirich Tewari were claiming, in the present suit, a much higher interest then what they claimed in the partition suit which was filed before the Munsif of Aurangabad, and this provides a strong motive for them to suppress the summons in suit. We would like to observe here, however, that mere motive, howsoever strong it may be, is not enough for holding that the summonses in the suit were, in fact, suppressed, and that question shall have to be decided on the evidence on the record.
7. As observed earlier, Kamta Tewary has been examined -as A. W. 1. He has stated in his evidence that about 15 months before the date of his deposition he informed appellant Hri-dayanand Tewary about the ex parte decree. He claims that he learnt about the ex parte decree from Bindeshwari Tewari. There is nothing in his evidence on the basis of which his testimony can be doubted. His evidence has been rejected by the court below merely on the ground that there was no other witness to support him that Bindeshwari Tewari told him about the ex parte decree- The evidence of every witness is to be judged on its own merits and if there is nothing in his evidence or in the evidence of other witnesses examined in the case to discredit him, it cannot be disbelieved on the ground that there is only one witness on the point and no other witness has been examined to support him.
8. A. W. 2 is Hridyanand Tewary himself. In his evidence he has stated that Gopinath Singh (O. P. W. No. 1), the court peon, did not go to his village for serving the summonses of the suit on him and the other applicants also did not get summonses of the suit. He also denied that there was any maidservant in his house. This was on account of the fact that one of the appellants is a female and, according to the report of the court peon, summons for her was sent to her through a maidservant. The court below was not inclined to rely on the evidence of this witness on the ground that in its opinion, the evidence of this witness amounted to an admission that the court peon had been to his village. There is nothing in the evidence of the witness from which such an inference can be drawn. The witness was also not able to tell categorically whether he came to Gaya to enquire about the ex parte decree after he learnt from A. W. 1 in the first part of the month of Jeth or in the second part of that month. It was the month of Jeth is not in djspute and the witness cannot be disbelieved on the ground that at the time of his deposition he did not remember, whether it was the beginning of the month or the end of the month. The other witness examined (A. W. 3) has merely proved some documents.
9. One of the witnesses examined on behalf of the plaintiff-opposite party was the court peon, Gopinath Singh. He has proved his report of the service of the summonses and said that it was a true report. It is important to note that ordinarily the chaukidar of the village is called upon to witness the service of the summonses. Deoki Tiwary (O. P. W. 2), one of the witnesses to the service of summonses, has said that the name of the chaukidar of the village is Deoki Dusadh. One Ramvishwas Ram is also a witness to the service of summonses. He has not been examined in the case. According to the evidence of O. P. Ws. 1 and 2, he is a brother of the chaukidar, but O. P. W. 3, Bindeshwari Tewari himself, insists that Ramvishwas is the chaukidar of the village. There is no satisfactory explanation as to why the chaukidar was not called by the serving court peon for witnessing the service and why Ramvishwas Ram has not been examined in the case.
O. P. W. 2 has admitted that no one keeps a maid-servant in the family of the appellants, except Fool Kuer Appellant No. 2, to whom, according to the service report (Ext. A) summons was sent through a maid-servant. It is not quite intelligible why if the other females of the family do not require a maid-servant, a maid-servant is kept for Fool Kuer alone. The fact that O. P. W. 2 insists that there was a maid-servant in the family and O. P. 3 insists that Ramvishwas Ram is the chaukidar of the village, which he is not, shows that these witnesses have got no regard for truth and no reliance can be placed on their evidence. In the circumstances, it is not possible to rely on the evidence of even O. P. W. 1, the court peon, who, obviously, appears to have made a wrong report that summons to one of the appellants was sent through a maid-servant. On the evidence on the record, therefore, it is not possible to hold that summonses in the suit were shown to the" appellants by the court peon and on their refusal to accept them, he effected house service.
10. The registered post-cards have been marked Ext. D series and the endorsements of the postal peon therein Exhibit C 'series. The postal peon has not been examined to prove that, in fact the appellants refused to accept the cards and he then made the endorsements. It has been contended by learned Counsel for the plaintiff-respondents that there is a presumption that the letters once posted reached their destination. No doubt, there is such a presumption, but, A. W. 3 has denied that these post cards reached the appellants. Therefore, that presumption stands rebutted. Thereafter it was for the plaintiff-respondents to prove by examining the postal peon that the post-cards, in fact, reached the appellants. O. P. W. 3 has merely claimed that he knows the handwriting of the postal peon and has proved the endorsements, but, from his cross-examination it appears that he has got little knowledge of English. The endorsements being in English, he is incompetent to even prove that. It is, therefore, also not possible to hold that service through registered post was effected on the appellants and they had knowledge of the suit on that account.
11. I would, next take up the question as to what is the effect of the substituted service under Order V, Rule 20 of the Code of Civil Procedure-Recourse to substituted service under the said rule is to be taken only when the materials are placed before the court to show "that the defendant is keeping out of the way for the purpose of avoiding service". In this case, obviously, there was no such material before the court. Rather the materials placed before the court were that service had been effected on the defendants, both through the court peon regularly and also through registered post. In the circumstances, steps for substituted service under the said rule ought not to have been taken. Further, when substituted service is effected under the said rule and the summonses are published either in the gazette or in some news-paper ordinarily summonses are also affixed in some conspicuous place of the court house and 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. There is no evidence on the record that summonses were served in the suit by affixing copies thereof in some conspicuous place in the court house or upon some conspicuous part of the house, if any, in which the appellants were found to have last resided or carried on business or personally worked for gain.
12. In the case of G. Shanmukhi v. Venkatarami Reddi (AIR 1957 Andh Pra 1 (FB)), it was held that substituted service under Order V, Rule 20 of the Code of Civil Procedure may or may not be "due service" within the meaning of Order IX, Rule 13 of the Code and it will have to be determined by ascertaining whether the representations made to the court by the plaintiff were or were not true, that is to say, whether the defendant could be presumed, in the circumstances, to have had or had not actual knowledge. On the facts and in the circumstances of the case, in our opinion, the appellants had no actual knowledge of the suit and, therefore, the substituted service under Order V, Rule 20 of the Code of Civil Procedure, in our opinion, was not due service within the meaning of Order IX, Rule 13 of the Code of Civil Procedure.
13. After having considered the materials on the record, we are of the view that the appellants have succeeded in making out a case for setting aside the ex parte decree passed in the suit and the court below has erred in rejecting their application under Order IX, Rule 13 of the Code of Civil Procedure. We accordingly set aside the order of the court below" and allow the appeal as well as the application under Order IX, Rule 13 of the Code of Civil Procedure. The Subordinate Judge shall now proceed with the hearing of the suit in accordance with law. Since, after the return of the plaint by the Munsif of Aurangabad in the other title suit, the appellants were not taking interest in the litigation, we think that the parties should bear their own costs of the proceeding under Order IX, Rule 13 of the Code and of this appeal.
No comments:
Post a Comment