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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RAJ MOHAN SINGH, J.
Inderjit Kaur - Appellant
Versus
Amrit Lal - Respondent
Civil Revision No. 4846 of 2018
Decided On : 17-10-2019
Service of Summons - Civil Procedure Code - Order 9 Rule 13 - Order 5 Rule 15 - Order 5 Rule 17 - Order 5 Rule 20
Fact of the Case:
The petitioner filed a revision petition against the decree of the suit in favor of the respondent after the petitioner was proceeded against ex parte. The petitioner's application under Order 9 Rule 13 CPC was dismissed by the lower courts. The controversy revolved around the service of summons to the defendant.
Finding of the Court:
The court found that the findings recorded by the lower courts were contrary to the interlocutory orders available on record in the context of service of the defendant. The court set aside the impugned orders and directed the trial court to proceed afresh strictly in accordance with the material on record and decide the application under Order 9 Rule 13 CPC afresh strictly in accordance with law.
Issues: The issues revolved around the irregularity in the service of summons, the validity of the substituted mode of service, and the compliance with the provisions of Order 5 Rule 17 and Order 5 Rule 20 of the Civil Procedure Code.
Ratio Decidendi: The court held that the lower courts had gone beyond the evidence on record and proceeded to record findings on the basis of some other material which was not considered by the trial court in the context of service of the defendant. The court emphasized the need for strict compliance with the legal provisions governing the service of summons.
Final Decision: The court set aside the impugned orders and directed the trial court to proceed afresh in accordance with the material on record and decide the application under Order 9 Rule 13 CPC afresh strictly in accordance with law.
JUDGMENT :
Raj Mohan Singh, J.
1. Petitioner has preferred this revision petition against the order dated 25.07.2008 passed by Additional Civil Judge (Senior Division), Faridkot, vide which suit of the plaintiff/respondent was decreed after proceeding ex parte against the petitioner, order dated 09.09.2015 passed by Additional Civil Judge (Senior Division), Faridkot, whereby application under Order 9 Rule 13 CPC filed by the petitioner was dismissed and order dated 08.05.2018 passed by the Additional District Judge, Faridkot, vide which appeal filed by the petitioner was dismissed.
2. In order to appreciate the controversy in question, photostat record of the trial Court was requisitioned vide order dated 23.05.2019.
3. Order dated 27.09.2006 passed by the trial Court reproduced hereasunder:-
| "Present: Counsel for the plaintiff. |
| Suit got by entrustment. Office report seen. Suit be registered. Notice of the suit be given to the defendant on filing of PF etc. for 17.10.2006. |
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| ACJ(SD) 27.09.2006." |
Perusal of the aforesaid order would show that the suit was registered on 27.09.2006 and notice was issued to the defendant Inderjit Kaur (petitioner) on filing PF etc for 17.10.2006.
On 17.10.2006, following order was passed by the trial Court:-
| "Present: Counsel for the plaintiff. |
|
|
| Summons issued for the service of defendant received back unserved with the report that she is not residing at the given address. Now defendant be summoned again on filing of PF/CA/RC etc. for 10.01.2007. |
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| ACJ(SD) 17.10.2006" |
Perusal of the aforesaid order would show that summons issued to the defendant were received back unserved with the report that she was not residing on the given address. Defendant was ordered to be summoned on filing PF/CA/RC etc. for 10.01.2007.
Order dated 10.01.2007 passed by the trial Court reads as under:-
| "Present: Counsel for the plaintiff. |
|
|
| Summons could not be issued for want of PF/RC/CA. Learned counsel for the plaintiff is directed to file the same and thereafter, defendant be summoned for 15.02.2007. |
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| ACJ(SD) 10.01.2007" |
On the adjourned date i.e. 15.02.2007, following order was passed by the trial Court:-
| "Present: Counsel for the plaintiff. |
|
|
| RC issued for the service of defendant not received back. As ordered earlier defendant be again summoned on filing of PF/RC etc. for 09.05.2007. |
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| ACJ(SD) 15.02.2007" |
In view of aforesaid orders, defendant was ordered to be served again on filing PF/RC as the earlier summons issued to the defendant were not received back served or otherwise. On 09.05.2007, following order was passed by the trial Court:-
| "Present: Counsel for the plaintiff. |
|
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| RC issued for the service of defendant received back unexecuted. On the perusal of file I find that the defendant has not been served for the last about 6 months. As such, I am satisfied that she cannot be served through ordinary process. As such, defendant be now summoned through publication in Daily Desh Sewak on filing of necessary publication charges for 24.07.2007. |
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| ACJ(SD) 09.05.2007" |
Perusal of the aforesaid order would show that the registered cover issued for the service of the defendant were received back unexecuted. The trial Court recorded its satisfaction that the defendant could not be served through ordinary process and thereafter, resorted to serve the defendant through publication in 'Daily Desh Sewak' newspaper on filing publication charges for 24.07.2007.
On 24.07.2007 following order was passed by the trial Court:-
| "Present: Counsel for the plaintiff. |
|
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| Case called several time since morning through out the day but nobody is present on behalf of defendant despite service through publication in Desh Sewak dated |
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