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1967 Supreme(Del) 187
High Court Of Delhi
PUNJAB OIL EXPELLERS COMPANY - Appellant
Versus
MADAN LAL NANDA AND SONS - Respondent
Civil 655D of 1962
Decided On : 11/17/1967
K.R.Khanna, Vijay Kishan
The duty of the Court to ensure proper service of summons, the importance of personal service, the conditions for substituted service and service by affixation, and the limitation period for setting aside an ex-parte decree under Article 164 of the Indian Limitation Act.
Headnote:
SERVICE OF SUMMONS - ORDER V, RULES 12 TO 17, CODE OF CIVIL PROCEDURE - HIGH COURT RULES AND ORDERS, VOL. IV, CHAPTER 7-B - DUE SERVICE - EX PARTE DECREE - SETTING ASIDE - LIMITATION - ARTICLE 164, INDIAN LIMITATION ACT - DUTY OF COURT TO ENSURE PROPER SERVICE - PERSONAL SERVICE - SUBSTITUTED SERVICE - AFFIXATION - REASONABLE EFFORTS - JUDICIAL MIND - MATERIAL IRREGULARITY - INJUSTICE.
Fact of the Case:
The defendant, Punjab Oil Expeller Company, challenged an order of the Additional District Judge, Delhi, affirming an order of the Subordinate Judge, Delhi, declining to set aside an ex-parte decree on the ground of due service and limitation under Article 164 of the Indian Limitation Act. The suit was instituted on 28th March 1958 and registered on 3rd April 1958. Summons were ordered for 12th May 1958, with a note suggesting service by affixation in case of refusal. On 12th May 1958, the plaintiff's counsel was present, and the report showed service by affixation, but the defendant was absent. Ex-parte proceedings were directed, and an ex-parte decree was passed on 13th May 1958. An execution application was presented on 17th November 1958, dismissed on 10th January 1959, and a second execution application was presented on 6th March 1961. The defendant applied to set aside the ex-parte decree on 16th May 1961, and the executing Court dismissed the application on 26th March 1962, finding due service and limitation.
Finding of the Court:
The High Court found that the trial Court and the appellate court had failed to pay personal attention to the matter of service of summons, had not examined the process-server properly, and had not applied their minds to the law on the subject. The Court held that the evidence of due service was uninspiring and that the orders of the courts below were tainted with illegality and material irregularity, resulting in injustice.
Issues: 1. Whether there was due service of summons on the defendant? 2. Whether the application to set aside the ex-parte decree was barred by limitation under Article 164 of the Indian Limitation Act?
Ratio Decidendi: 1. The Court held that the trial Court had failed to comply with the directions contained in the High Court Rules and Orders, Vol. IV, Chapter 7-B, which required the Court to make reasonable efforts to effect personal service before resorting to substituted service or service by affixation. 2. The Court held that the process-server's evidence was insufficient to establish due service, as he had not made sufficient inquiries to ascertain the whereabouts of the defendant or to serve the summons personally. 3. The Court held that the trial Court had erred in not examining the process-server on solemn affirmation and in not taking further inquiries to satisfy itself that reasonable efforts were made to serve the defendant personally. 4. The Court held that the defendant had not come to know of the decree prior to the date on which he claimed to have learned of it, and therefore, the application to set aside the ex-parte decree was not barred by limitation.
Final Decision: The High Court allowed the revision petition, reversed the orders of the courts below, set aside the ex-parte decree dated 13th May 1958, and restored the original suit on the list of pending suits in the Court of first instance for trial and decision in accordance with law.
( 1 ) THIS revision has been presented by the defendant, the Punjab Oil Expeller Company of Ghaziabad, against an order of ths learned Additional District Judge, Delhi, dated 17th August 1962 affirming on appeal an order of a learned Subordinate Judge 1st Class, Delhi, made on 26th March 1962 decling to set aside the ex-parte order dated 13th June 1958 on the ground that there was due service of the defendant and that the application was barred by time under Article 164 of the Indian Limitation Act.
( 2 ) IT would be helpful at this stage to state the relevant facts. The suit out of which these procceedings arise was instituted on 28th March 1958 for the recovery of Rs. 1,537/5/9 and the same was registered on 3rd April, 1958. On the date of registration of the suit, it was ordered that summonses should go for 12th May 1958. No inter- mediate date was fixed. There is a note at the bottom of the older suggesting that in case of refusal service should be effected by affixation. This note is obviously somewhat suspicious. On 12th May 1958, the order shows that the plaintiff s counsel was present and the report was that service had been effected by affixation but the defendant was absent. The case was ordered to be called later. The same day at about 2. 30. P. M. ex-parte procceedings were directed to be taken and the case was adjourned to the following day for the plaintifis evidence. On the following day, viz, 13th May 1958 after recording the evidence of P. W. I, the Court passed an ex-farte decree for Rs. 1,537/5/9 with costs.
( 3 ) ON 17th November, 1958, an execution application was presented in which notice was ordered to be issued on 20th November, 1958, but the same was dismissed on 10th January, 1959 because no process had been filed and no one appeared at the hearing. It is difficult to understand as to why it was got dismissed in such circumstances and indeed no explanation has been offered at the bar for this proceeding. Second application for execution was presented on 6th March, 1961. In this application, notice was issued to the judgment-debtor and the judgment-debtor applied on 16th May, 1961 for setting aside the ex parte decree. An application was also made on 20th May, 1961 for staying execution proceedings pending the decision of the application for setting aside the ex-parte decree and in the proceeding for setting aside the ex-parte decree, the following three issues on merits were framed:-
1. Whether the application is within time ?
2. Whether there is sufficient cause for the setting aside of the exparte decree ? and
3. Whether the defendant was not duly served ? The executing Court deciding issues Nos. 2 and 3 came to the conclusion that it had not been proved that the defendant had not been duly served. There was accordingly no sufficient cause for setting aside the ex-parte decree. After so holding the executing Court also observed that under Article 164 of the Indian Limitation Act, the petition was barred by time. For these reasons, the objections were dismissed on 26th March, 1962.
( 4 ) ON appeal, the learned Additional District Judge affirmed the conclusion of the executing Court. According to the Court of Appeal, Ude Ram, process-server, R. W. I had actually entered the business premises of the defendant and asked the persons working there about the owners of the firm. On being told that they did not know as to where the owners of the firm were, the process-server waited for some time and pasted the summons outside the business premises. The Court of Appeal has observed that the persons working at the premises of the defendant did not give any assistance to the process-server, though they were duty bound to co-operate with him in order to trace out the defendant. The silence and non-co-operation of the said workers, according to the learned Additional District Judge, was intentional and at the instance of those who had employed them. With this observation, the learned Additional District Jud
