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1992 Supreme(HP) 113
High Court Of Himachal Pradesh
DEVINDER GUPTA
RAJESH KOCHHAR - Appellant
Versus
BABA RAM - Respondent
Civil Revision No. 27 of 1992
Decided On : 12/18/1992
For the petitioner(s):Mr. G. C. Gupta, Advocate. For the respondent(s):Mr. S. S. Kanwar, Advocate.
Service of summons must be valid and effective in order for a court to have jurisdiction to pass an ex parte decree. The process server must exercise due care and diligence in finding about the whereabouts of the defendant before effecting service by affixation.
Headnote:
CIVIL PROCEDURE CODE - ORDER 9 RULE 13 - SETTING ASIDE EX PARTE DECREE - SERVICE OF SUMMONS - VALIDITY - REQUIREMENTS - DUE DILIGENCE - AFFIXATION OF SUMMONS - CONDITIONS - COURT'S DECLARATION - EXAMINATION OF PROCESS SERVER - JURISDICTION - REVISION.
Fact of the Case:
Plaintiff filed a suit for possession of a residential set located in Shimla against the defendant. The defendant was proceeded ex parte and an ex parte decree was passed in favor of the plaintiff. The defendant filed an application under Order 9 Rule 13 of the Code of Civil Procedure (CPC) to set aside the ex parte decree. The trial court allowed the application and set aside the ex parte decree. The plaintiff filed a revision petition challenging the order of the trial court.
Finding of the Court:
The court held that the service of summons on the defendant was not valid and effective. The process server did not exercise due care and diligence in finding about the whereabouts of the defendant before effecting service by affixation. The process server did not satisfy himself, after due enquiry, that the lady to whom the summonses were tendered was in fact the wife of the defendant. Service by affixation made in the facts and circumstances was held to be without complying with the requirements of law.
Issues: 1. Whether the service of summons on the defendant was valid and effective? 2. Whether the trial court erred in setting aside the ex parte decree?
Ratio Decidendi: 1. The court held that the service of summons on the defendant was not valid and effective. The process server did not exercise due care and diligence in finding about the whereabouts of the defendant before effecting service by affixation. The process server did not satisfy himself, after due enquiry, that the lady to whom the summonses were tendered was in fact the wife of the defendant. Service by affixation made in the facts and circumstances was held to be without complying with the requirements of law. 2. The court held that the trial court did not err in setting aside the ex parte decree.
Final Decision: The revision petition was dismissed with costs.
Devinder Gupta, J.—This civil revision was instituted on 25th February, 1992. Since the respondent had put in appearance on the basis of caveat, formal notice was not issued to the respondent. Record of the court below was summoned and thereafter the case was heard on number of occasions* Earlier, the case was heard by Mr. Justice V K. Mehrotra, but the matter could not be disposed of. Again, the case was listed for admission. Arguments were heard in part on 6th November, 1992 and on 9th November, 1992. Today, the Counsel for the parties have been heard at length and I have perused the record of the court below.
2. The order impugned against is the one by which the Senior Sub- Judge, Shimla allowed an application of the defendant-respondent under Order 9, Rule 13 of the Code of Civil Procedure (hereinafter referred to as the Code) to set aside the ex-parte judgment and decree passed in favour of the plaintiff-petitioner on 15th January, 1990.
3. It is necessary to narrate some facts. On 2nd December, 1989, a suit for recovery of possession of a residential set located in Chakkar, Shimla was filed by the petitioner against the respondent in the Court of Senior Sub-Judge, Shimla claiming that the same was located outside Municipal limits of Shimla The respondent was proceeded against ex-parte on 4th January, 1990. After recording the petitioners ex parte evidence on 15th January, 1990, the suit was decreed exparte on the same day. On the fourth day of the passing of the decree, execution petition was filed and the actual dispossession of the respondent took place on 25th May, 1990. On 5th July, 1990, an application for setting aside the ex-parte decree was preferred, which was opposed by the petitioner and the trial Court after recording a finding that the summons had not been duly served upon the respondent, set aside the ex-parte decree, which is under challenge.
4. The record further reveals that the suit was instituted on 2nd December, 1989, on the same date, office report thereupon, after scrutiny of the plaint, was made and on the same day the court directed the defendant to be served for 4th January, 1990. Summonses were also prepared on the same day i e. 2nd December, 1989. The Process Server was handed over the summonses for service on 4th December, 1989, who appears to have tried to effect personal service on the respondent on 11th December, 1989, but as per his report on the back of summons Ex AW-l/G, the respondent was not available and was stated to be away. On the same day, the Process Server was asked to make another attempt for service. As per the report, second attempt appears to have been made on 2nd January, 1990. It is reported that the respondent was not available and on the identification of one Ravinder S. Chandel, summons was offered to the respondents wife. On her refusal, the Process Server affixed the summons alongwith copy attached thereto on the residential house and obtained the signatures, in token thereof, of Ravinder S. Chandel.
5. Since nobody appeared on behalf of the respondent on 4th January, 1990, he was ordered to be proceeded against ex-parte The petitioner was called upon to lead his ex-parte evidence, which was recorded on 15th January, 1990 and on the same day, decree was also passed against the respondent for possession of the suit premises. Simultaneously, a decree for recovery of use and occupation charges w.e.f 1st December, 1989 till actual delivery of possession at the rate of Rs. 1,000 per month was also passed. On 19th January, 1990, execution petition was presented and with out calling for the report of the office, the Court straightaway directed the said execution petition to be registered A notice was directed to be issued against the judgment-debtor for 2nd March, 1990 on the petitioner filing process fee. The court also directed that the execution petition be checked and report placed for that date The order-sheet of 2nd March, 1990 states that the respondent was serve
