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High Court Of Madhya Pradesh
R. S. Garg
LILABAI - Appellant
Versus
TRIYOGINARAYAN - Respondents
Civil Revision 297 Of 1996
Decided On : 05/14/1997
SERVICE OF SUMMONS - IRREGULARITY - SETTING ASIDE EX-PARTE DECREE - SECOND PROVISO TO RULE 13 OF ORDER 9, CPC - INTERPRETATION - APPLICABILITY - COURT'S DUTY TO VERIFY SERVICE OF SUMMONS - ORDER 5, RULES 15, 16, AND 18, CPC - STRICT COMPLIANCE REQUIRED.
Fact of the Case:
The applicants filed an application under Order 9, Rule 13, CPC, to set aside an ex-parte decree passed against them in a civil suit, alleging that they were not served with the summons in accordance with law. The trial court and the appellate court dismissed the application, holding that the application was barred by limitation and that the defendants could not make out a case for setting aside the ex-parte decree.
Finding of the Court:
The High Court held that the service of summons was not in accordance with law and that the courts below were not justified in rejecting the applicants' application. The court found that the bailiff did not know the defendants or their representative, did not ask anyone to identify them, and did not obtain their signatures on the acknowledgment of service. The court also held that the second proviso to Rule 13 of Order 9, CPC, which allows the court to refuse to set aside an ex-parte decree if the defendant had notice of the date of hearing and sufficient time to appear, was not applicable in this case because the plaintiff failed to prove that the summons were served on the defendants or that they had knowledge of the proceedings.
Issues: 1. Whether the service of summons was in accordance with law? 2. Whether the courts below were justified in rejecting the applicants' application? 3. Whether the second proviso to Rule 13 of Order 9, CPC, was applicable in this case?
Ratio Decidendi: 1. The court held that the service of summons was not in accordance with law because the bailiff did not know the defendants or their representative, did not ask anyone to identify them, and did not obtain their signatures on the acknowledgment of service. The court also found that the plaintiff failed to prove that the summons were served on the defendants or that they had knowledge of the proceedings. 2. The court held that the courts below were not justified in rejecting the applicants' application because the plaintiff failed to prove that the summons were served on the defendants or that they had knowledge of the proceedings. 3. The court held that the second proviso to Rule 13 of Order 9, CPC, was not applicable in this case because the plaintiff failed to prove that the summons were served on the defendants or that they had knowledge of the proceedings.
Final Decision: The High Court allowed the revision petition, set aside the judgment and decree passed in the civil suit, and directed the parties to appear before the trial court for further proceedings.
( 1 ) BEING aggrieved by the order dated 24-11-1995 passed in Misc. Appeal No. 12/94 by the learned Xllth Addl. District Judge, Indore, confirming the order dated 4-3-1994 passed in M. J. C. No. 62/87 by the learned Civil Judge, Class-I, Indore, dismissing the applicants' application filed under order 9, Rule 13, CPC for setting aside the ex-parte judgment and decree delivered in Civil suit No. 5-B/l986 (though the suit is Suit no. 5b/1986 but at many places it has been referred as 5b of 1985. (Triyoginarayn v. Daulatdas) on 28-7-1986.
( 2 ) THE applicants moved an application under Order 9, Rule 13, CPC inter alia pleading that they were not served in accordance with law, therefore the ex-parte decree passed against their interest, deserved to be set aside. In the revision memo, so also in the application for setting aside to ex-parte decree, reference to earlier litigation has been made, but to my mind consideration of the earlier matters lodged by the parties is not relevant.
( 3 ) THE applicants submitted before the court as they were not served properly in accordance with law of the service of summons of C. S. No. 5-B/85 (86), the ex-parte decree deserved to be set aside. The application was vehemently opposed and it was contended that daulatdas s/o Mahant Kunjbiharidas, one of the defendant in the original suit was served in accordance with law and as he was representing all concerned, the Baliff supplied him the copies to effect service and as such each of the defendant was properly served, therefore, the plea raised by the defendants that they were not served in accordance with law could not be accepted and the application deserved dismissal.
( 4 ) AS the parties joined issue, the learned trial Court recorded evidence of the parties.
( 5 ) THE applicants examined applicant No. 4 Laxmandas and in support of his statements also examined Bhawani Singh who contended that he had informed Laxmandas and others that Nazir had come to the suit property for effecting the auction. The non-applicant examined himself and stated on oath that summons were legally served.
( 6 ) THE learned Trial Court after hearing the parties, held that as the defendants were served in accordance with law, their application filed under Order 9, Rule 13, CPC was barred by limitation and they were not entitled to any relief from the Court. The trial Court also held that as the application was barred by limitation, it was not required to decide the matter on merits. Being dissatisfied the order passed by the learned trial Court, the applicants took up the matter in appeal. The learned appellate Court while endorsing the findings of the trial Court regarding limitation also examined the merits of the matter and held that the defendants/applicants could not make out a case for setting aside the ex-parte decree. Being dissatisfied by the orders passed by the appellate Court, the applicants have preferred this revision petition.
( 7 ) MR. T. N. Singh, learned Counsel for the applicants contends that the copy of the summons available in the court records would clearly show that the summons were not served in accordance with law, and therefore, the court was unjustified in holding that the application was barred by limitation and was also wrong in deciding on merits against the applicants. Referring to certain provisions of Order 5 Mr. Singh contended that Baliff's report regarding the service was incomplete, it was not in accordance with the rules and as the Bailiff did not submit his affidavit in accordance with the form appended in Schedule 1, Appendix b, there can be no presumption of the valid service. Contending otherwise, Mr. Barania, learned counsel for the non-applicant submits that the service was legally effected, Daulatdas who was served was virtually representing all the applicants/defendants as he was Karta of the family. The Baliff was justified in serving the summons of the suit upon him and the court below was not wrong in hold
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