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PUNJAB & HARYANA HIGH COURT
Swatanter Kumar, J.
Yad Ram
Versus
Capt.Ram Avtar
C.R. No. 4381 of 1996,
Decided On : MAY 27, 1999
REVISION - MAINTAINABILITY - ORDER DIRECTING EX PARTE PROCEEDINGS - APPEALABILITY - JURISDICTION - SECTION 115 CPC - SCOPE - FAILURE OF JUSTICE - IRREPARABLE INJURY - SERVICE OF SUMMONS - SUBSTITUTED SERVICE - ORDER 5 RULES 9, 10, 19A, 20 CPC - INTERPRETATION - SUMMONS ADDRESSED TO WRONG ADDRESS - NO SERVICE BY REGISTERED POST - PROCLAMATION IN WRONG VILLAGE - PREJUDICE TO DEFENDANT - SETTING ASIDE EX PARTE ORDER - JURISDICTION EXERCISED ILLEGALLY - ERROR APPARENT ON FACE OF RECORD.
Fact of the Case:
Defendant-applicant challenged the order of the trial court refusing to set aside an ex parte order passed against her in a suit for specific performance of an agreement to sell immovable property. The main grounds of challenge were that the summons were served at the wrong address, summons were not sent by registered post, acknowledgement due, despite the order of the court, and even the proclamation was effected in a village where the defendant was not residing.
Finding of the Court:
The court held that the revision petition was maintainable under Section 115 CPC as the impugned order was passed illegally and with material irregularity, and it caused irreparable injury to the defendant. The court further held that the trial court failed to exercise its jurisdiction lawfully and fell into an error apparent on the face of the record by not examining the records before it.
Issues: 1. Whether the revision petition was maintainable under Section 115 CPC? 2. Whether the trial court exercised its jurisdiction lawfully? 3. Whether the service of summons was proper and in accordance with the provisions of Order 5 Rules 9, 10, 19A, and 20 CPC?
Ratio Decidendi: 1. The court held that the revision petition was maintainable under Section 115 CPC as the impugned order was passed illegally and with material irregularity, and it caused irreparable injury to the defendant. The court relied on the amended provisions of Section 115 CPC, which empower the High Court to interfere with orders passed in the course of a suit even if they do not finally dispose of the suit, where there is a likelihood of failure of justice or irreparable injury to a party. 2. The court held that the trial court failed to exercise its jurisdiction lawfully by not examining the records before it and by failing to consider the prejudice caused to the defendant due to the improper service of summons. 3. The court held that the service of summons was not proper and in accordance with the provisions of Order 5 Rules 9, 10, 19A, and 20 CPC. The court noted that the summons were sent to the wrong address, summons were not sent by registered post, acknowledgement due, despite the order of the court, and even the proclamation was effected in a village where the defendant was not residing.
Final Decision: The court set aside the impugned order of the trial court and allowed the defendant's application for setting aside the ex parte order dated 1.9.1994 directing ex parte proceedings against her. The defendant was directed to file a written statement within four weeks from the date of the order.
Swatanter Kumar, J.
1. CM. No. 2378/CII/97 and CM. 8881/CII/97 were listed for hearing before this Court. The earlier CM is for grant of interim stay in relation to the proceedings pending before the learned trial Court, while the latter CM. relates to the extension of stay order already granted vide order dated 28.2.1997. On the consent of the learned counsel for the parties, revision petition itself was also heard on merits and order reserved.
2. At the very outset learned counsel appearing for the respondent raised preliminary objections that the revision petition itself is not maintainable, as proper remedy for the petitioners is to prefer an appeal before the Court of competent jurisdiction. He further contended that in consonance with the principles enunciated in the case of Purohit Swarupnarain v. Gopinath and Anr., A.I.R. 1953 Rajasthan 137 and Manga Singh v. Sararmal and Ors., A.I.R. 1957 Rajasthan 68, the petitioners herein can impugn and raise controversy in relation to the impugned order at the time of filing of the appeal, as such revision under Section 115 of the Code of Civil Procedure was also not maintainable. Reacting to the above contention, the learned counsel for the petitioners contended that no proper service had been effected upon the applicant and in fact the summons and munadi were effected on a wrong address in a different village. He further contended that no notice by registered post was sent in terms of the order of the Court and as such the applicant could not have been proceeded against ex parte (Order 9 Rule 4 C.P.C) vide order dated 9.1.1994 and resultantly the impugned order dated 9.10.1996 is liable to be set aside, as learned Court has failed to exercise its jurisdiction lawfully vested in it.
3. The facts giving rise to the present revision petition are that the plaintiff Capt. Ram Avtar had filed a suit for possession by way of specific performance of the agreement dated 10.6.1992 in relation to the land forming subject matter of the present suit. In the said suit, summons were ordered to be sent to the defendant. Thereafter, the Court had probably passed the order for effecting service by substituted method by way of proclamation in the village. As per the report on the summons, the defendant was served by proclamation and consequently, defendant was ordered to be proceeded against ex parte in the proceedings in the suit vide order dated 1.9.1994. The defendant-applicant having come to know of the proceedings, subsequently filed an application for setting aside the order dated 1.9.1994 ordering ex parte proceedings against her and prayed for relief to allow her to participate in the suit in accordance with the application and declined to allow the said application for the reasons stated in the order dated 9.10.1996, which has been impugned in the present revision petition.
4. Before discussing the merits of this application, it will be appropriate for this Court to deliberate on two legal issues raised on behalf of the respondent in this petition. The first contention raised on behalf of the respondent in any case is devoid of any merit and is contrary to the specific provisions of Code of Civil Procedure and Order 43 Rule 1 of the Code of Civil Procedure which deals with the orders which are appealable and an order directing the ex parte proceedings against the defendant in a suit or dismissal of an application" for setting aside the ex parte order within the purview and scope of Order 9 Rule 7 of the Code of Civil Procedure. Any order passed under Order 9 Rule 7 CPC is certainly not appealable under the provisions of Order 43 Rule 1 CPC. As such I am unable to agree to the view that the proper remedy for the petitioners was to file a regular appeal before the Court of competent jurisdiction and not this revision petition. The next objection in relation to non-maintainability of the revision under the provisions of Section 106 of the Code of Civil Procedure as a result of the sp
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