. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT
S.B. CIVIL MISC. APPEAL NO.374/2013 Suresh Kumar Vs. Dwarka Das DATE OF ORDER
: September 12, 2013 ::P R E S E N T:: HON'BLE MR. JUSTICE P.K. LOHRA Mr. J.K. Bhaiya, for the appellant. Mr. Ravi Bhansali with Mr. Rahul Mutha, for the respondent. *** BY THE COURT: Siblings are the rival parties pitted against each other in this fierce legal battle of supremacy. Bone of contention in this appeal is the impugned order dated 10th of April 2013, rendered by the learned Addl. District Judge No.1, Bhilwara (for short, ‘learned trial Court’), whereby the application of the appellant under Order 9 Rule 13 CPC for setting aside ex-parte decree is rejected. . Stated in succinct, the factual matrix giving rise to this appeal is that the respondent-plaintiff launched a civil suit against the appellant for recovery of a sum of Rs.25,65,000/-. In the plaint, the respondent inter-alia averred that he is presently serving at Dubai (UAE) and his brother appellant is doing his business at Thane (Maharashtra). During visit of the respondent to his native place Bhilwara, appellant prompted him that he may deposit his savings as a security deposit with him so that the same shall remain safe and he would return back to the respondent as and when demanded. Acceding to the request of his brother, the respondent deposited a sum of Rs.26,50,000/- as security deposit with the appellant. When the respondent demanded his money back, the appellant handed over him two cheques of Vasai Janta Sahakari Bank of different denominations i.e. Rs.6,65,000/- and Rs.19,00,000/- bearing cheque Nos. 257098 and 162737 respectively. As per the version of the respondent when those cheques were presented for encashment, both were dishonored by the Bank of Baroda, where the respondent was having his account, citing the reason of insufficient fund in bank account No.33881 of the appellant. The suit was instituted in the year 2009 and summons were . issued to the appellant on various occasions but were not served for one reason or the other. The respondent made endeavor to send the summons by registered post but the registered envelope received back as unclaimed. Feeling disdained from the procedural wrangle in serving the summons, the respondent made endeavor for the substituted service on the appellant and that being so a request was made at his behest to serve the summons by way of substituted service under Order 5 Rule 20 CPC. The learned trial Court allowed the prayer of the respondent and permitted him to affect service of summons by way of substituted service and directed the summons be published in local newspaper where the appellant is residing. Pursuant to the order of the learned trial Court, requisite summons were published in the daily newspaper “Vaibhav”. which is having circulation in District Thane. When the respondent furnished the newspaper before the learned trial Court, the same was not treated as sufficient compliance of Order 5 Rule 20 CPC on the anvil that summons were published in daily newspaper of Marathi language. Therefore, the learned Court below permitted the respondent to publish summons in a daily Hindi newspaper having wide circulation in District Thane and the said order of the Court was complied with by the respondent. Despite . publication, nobody appeared on behalf of the appellant before the learned trial Court and therefore on 18th of January 2011, the learned trial Court proceeded ex-parte against the appellant. For proving his case, the respondent himself appeared in the witness box and testified on oath and also produced documentary evidence. The learned trial Court, after considering ex-parte evidence, decreed the suit ex-parte for a sum of Rs.25,65,000/- on 18th of April 2011. The appellant made endeavor to set aside the ex-parte decree by submitting application under Order 9 Rule 13 read with Section 151 CPC on 31st of May 2012 before the learned trial Court. In the application aforesaid, the appellant has specifically pleaded that the summons issued by the Court were never served on him and the address on which the summons were sent was not the place where the appellant was ordinarily residing at the relevant point of time. The appellant has also averred in the application that there was a report of the process server that the premises in question is closed yet on the same address summons were sent by registered post, which was nothing but an empty formality. While taking a dig at the substituted service by way of publication in the newspaper dated 22nd of April 2010, the appellant has mentioned in the . application that for resorting to substituted mode of service, the provisions of Order 5 Rule 20 CPC are not adhered to by the respondent-plaintiff in letter and spirit. The appellant categorically alleged in the application that the suit itself is based on false and concocted facts. The appellant has also made a positive assertion that he came to know about the ex-parte decree for the first time on 15th of May 2012 and thereafter he applied for certified copy on 22nd of May 2012 which was received by him on 28th of May 2012, immediately after receipt of the certified copy, the requisite application was made by him. The respondent-plaintiff contested the application and filed its detailed reply. In his return, the respondent has pleaded that when the summons were sent to the appellant by ordinary process and report of the process server was received that establishment is closed for last many days, the Court has ordered issuance of summons by registered post and said registered envelope was returned back with a remark “unclaimed”.. The respondent has thereafter pleaded in the reply that the report of “unclaimed”. was not treated as sufficient service by the Court and once again the summons were sent to the appellant by registered post. The said attempt of the . respondent has also not yielded the desired result and the envelope returned back with the remark “intimated”.. With these facts, the respondent has averred in the reply that the appellant has deliberately avoided service of summons thereby delayed the proceedings in the suit. As per version of the respondent, it was in these compelling circumstances, the Court has granted indulgence to him and permitted him to publish the summons in the daily newspaper which is widely circulated in District Thane, Maharashtra, in exercise of powers conferred on Court under Order 5 Rule 20 CPC. The respondent thereafter has pleaded in the reply that after publication of the summons in the daily newspaper, when the appellant did not appear before the Court, the Court has proceeded ex-parte and decreed the suit. Attributing total callousness and negligence on part of the appellant for his non-appearance to contest the suit, the respondent has prayed for dismissal of the application. Respondent has also castigated the appellant for his false assertion that he had no knowledge about pendency of the suit with a specific plea in the reply that appellant was in know of the fact that suit was pending against him as early as on 1st of June 2009 and thereafter on 1st of November 2011 and that being so his deliberate abstention in the proceedings cannot be excused in the given circumstances. . The learned trial Court, after considering the rival submissions, dismissed the application of the appellant by recording a satisfaction that summons were served on him appropriately by way of publication in accordance with Order 5 Rule 20 CPC. The learned Court below has also recorded a definite finding that the appellant had full knowledge about pendency of the suit as early as on 1st of June 2009 as on that day he has written a letter to the Chairman, Vora Industrial Estate No.4, Cooperative Societies, Vasai (East), District Thane and the said letter was replied by the Society to him. While recording a definite finding that the appellant has not appeared despite service of summons and knowledge about the suit, the learned Court below has declined the request of the appellant. The learned Court below has also non-suited the appellant on the ground that the application for setting aside ex-parte decree was grossly belated and no endeavor was made by the appellant seeking condonation of delay by way of laying an application under Section 5 of the Limitation Act. The learned counsel for the appellant, Mr. J.K. Bhaiya, has strenuously argued that the learned trial Court . while considering the application of the appellant for setting aside ex-parte decree has not properly construed the provisions of Rule 17 & 19 of Order 5 CPC governing the province of service of summons, and therefore, the impugned order cannot be sustained. Assailing the impugned order on the anvil of Rule 20 of Order 5 CPC, prescribing substituted mode of service, learned counsel for the appellant would urge that while resorting to substituted service, the learned Court below has not recorded satisfaction that defendant is keeping out of way for the purpose of avoiding service, or that for any other reason, the summons cannot be served in the ordinary way. Mr. Bhaiyya, learned counsel for the appellant, has urged that provisions of Rule 20 of Order 5 CPC are to be invoked under some special and extraordinary circumstances and such process of service is not to be resorted ordinarily. While substantiating his submission in this behalf, the learned counsel for the appellant has submitted that there is nothing on record to show that the learned Court below has recorded its satisfaction for ordering substituted service and therefore the ex-parte decree which was founded on substituted service ought to have been set aside by the learned Court below. Learned counsel for the appellant has also questioned the impugned order on the ground that . while deciding the application of the appellant under Order 9 Rule 13 CPC, the learned trial Court has not recorded evidence of the rival parties for proving service of summons or knowledge of the appellant about pendency of the suit. Emphasizing that substituted service is an exception and personal service of summons in ordinary way is a rule, learned counsel for the appellant has placed reliance on a decision of this Court in case of Harbhajan Singh and Anr. Vs. L.Rs. of Gardhara Singh [2010 (3) DNJ (Raj.) 1139].. This Court in the aforesaid judgment, while considering the purport of Rule 20 of Order 5 CPC, more particularly, in the matter of application under Order 9 Rule 13 CPC, has made following observations in Para 17 to 20:
17. It is pertinent to note that the application praying for substituted service upon the defendants was filed on behalf of the plaintiff stating therein that despite information regarding the suit filed, the defendants are not appearing and are trying to delay the proceedings of the suit, therefore, the plaintiff desirous to get the defendants served by publication in the newspaper "Punjab Kesari". Indisputably, the summons on the defendants were not duly served and therefore, there could not have been any presumption regarding information to them about the pendency of the suit. The application preferred does not disclose as to what efforts were made to serve the notice upon the defendants personally. That apart, no grounds were set forth in the application as to why the personal service could not be effected.
18. Further, a perusal of order dated 18.5.1984 reveals that the Court directed for . substituted service upon the defendants by way of publication in the newspaper "Punjab Kesari" on mere asking of the plaintiff without recording any finding as to in what circumstances, the defendants could not be served in ordinary course. A perusal of the proceedings of the suit further reveals that at no stage of the proceedings, it is noticed by the Court that the defendants were avoiding the service. To say the least, the manner in which the Court has dealt with the entire matter with regard to the service upon the defendants and has issued directions for substituted service, without even recording its satisfaction that the defendants cannot be served personally, does not inspire confidence and therefore, cannot be countenanced by this Court. Needless to say that the substituted service being presumptive in nature should not be resorted to by the Court unless on the basis of the material on record, it stands satisfied that the defendants are avoiding the service or for any other reason, the summons cannot be served upon them personally in ordinary way. On the facts and in the circumstances of the present case, the Court below could not have proceeded to pass an order for substituted service in casual manner solely on the basis of the plaintiff's desire to serve the defendants by substituted service.
19. In view of the discussion above, in considered opinion of this Court, the Court below has committed a gross error in directing the substituted service upon the defendants without there being the reasonable efforts to get the defendants served in ordinary way and without recording its satisfaction that the defendants cannot be served personally in the ordinary way and therefore, the service upon the respondents cannot be considered to be sufficient and in accordance with law.
20. Coming to the question as to whether the defendants had knowledge about the suit proceedings and therefore, they are not entitled to pray for setting aside of the ex parte decree keeping in view the mandate of second proviso to Order IX Rule 13 of C.P.C., it . is to be noticed that the knowledge of the proceedings attributed to the defendants is not based on any material on record. The presumption of the knowledge drawn by the Court below on account of the relationship of the defendant Harbhajan Singh and Kewal Singh who has appeared as witness on behalf of Harbhajan Singh is also not sustainable in eye of law, particularly when, the dispute relates to the alleged agreement to sell executed by Kewal Singh in favour of the plaintiff as power of attorney holder of the defendants and the appellants are questioning the existence of any such power of attorney and further Shri Kewal Singh himself has admitted in unequivocal terms in his statement that though the power of attorney was executed in his favour, the same is not in his possession. In considered opinion of this Court, on the basis of the material on record, no conclusion could be drawn that the defendants had notice about the date of hearing and had sufficient time to appear before the Court and answer the plaintiff's claim. Therefore, in the interest of justice, the appellants/defendants deserve to be granted an opportunity to contest the suit. For this proposition, reliance can be profitably made to a decision of Hon'ble Apex Court in case of Smt. Yallawwa Vs. Smt. Shantavva [(1997) 11 SCC159, wherein the Hon'ble Apex Court has made following observations in Para 5:
5. We have carefully considered the aforesaid rival contentions. In order to appreciate the main grievance of the appellant against the impugned order of the High Court, it is necessary to note at the outset that the respondent was seeking to get the order of the trial Court dismissing her application under Order IX Rule 13 CPC . quashed by the High Court. It is true that she moved a revision application for that purpose but the order of the trial Court refusing to set aside the ex parte decree was clearly appealable under Order XLIII Rule 1 (d) CPC which provides that an appeal shall lie from the orders listed in the said provision and in clause (d) is mentioned an order under Rule 13 if Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex-parte. It cannot be disputed that a decree granting divorce under Section 13(1)(i-b) whether ex parte or bipartite is a decree which is appealable under Section 28 of the Hindu Marriage Act, 1955. Consequently, the order of the trial Court refusing to set aside such an ex parte decree and rejecting the application under Order IX Rule 13 CPC could have been validly made the subject- matter of an appeal under Order XLIII Rule 1 (d). Therefore, the revision application filed by the respondent before the High Court should be treated in substance as one by way of miscellaneous appeal. Once the High Court has appellate jurisdiction over the impugned order of the learned trial Judge, it is obvious that the High Court was fully competent to interfere with the order by re- appreciation the facts of the case. The learned Single Judge has found that the respondent being an illiterate lady living in a different town could not have known through the newspaper that her husband had filed a divorce petition against her and, therefore, she had no knowledge about the divorce petition. Consequently, the ex parte decree could be treated as one passed against the party which was not served and which had no knowledge about the said proceedings. The learned counsel for the respondent was also justified in submitting that the trial Court could not have almost automatically granted the application for substituted service without taking steps for serving the respondent by ordinary procedure as laid down by Order V Rules 12, 15 and 17 CPC. It must be kept in view that substituted . service has to be restored as the last resort when the defendant cannot be served in the ordinary way and the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. In the present case, it appears that almost automatically the procedure of substituted service was restored to. It is also clear from the record of the case that respondent being an illiterate lady would not have known about passing of the ex parte decree earlier otherwise she could have moved for setting aside the decree on any day prior to the day on which she filed this application. Sufficient cause was therefore, made out for condoning the delay in filing the application for setting aside the ex parte decree. The High Court, in our opinion, has rightly come to this conclusion which calls for no interference under Article 136 of the Constitution, when substantial justice has been done to the parties and opportunity has been given to the wife to contest the divorce petition which had terminated against her without giving any hearing to her. Per contra, Mr. Ravi Bhansali, learned counsel for the respondent, while supporting the impugned order, has urged that there was umpteen material available on record to show that the appellant had knowledge about pendency of the suit and after publication of the summons in the newspaper, which had wide circulation in District Thane, no justifiable excuse was available to the appellant for his non- appearance and therefore the learned Court below has rightly rejected his application. Mr. Bhansali, learned . counsel for the respondent, would urge that summons were sent to the appellant by ordinary process and by registered post but the appellant has deliberately avoided the service. According to Mr. Bhansali, when the registered envelope returned back as unclaimed, the learned Court below has rightly ordered for substituted service and the said decision of the learned Court below cannot be faulted in the given circumstances. Learned counsel for the respondent has argued that the appellant had the knowledge about pendency of the suit as early as on 1st of June 2009 because on that day he has written a letter to the Chairman of the Society. Even subsequent to that, according to submission of Mr. Bhansali, the Society has divulged the required information about pendency of the suit to the appellant on 1st of November 2011. But despite having knowledge about pendency of the suit, the petitioner has shown total callousness and has deliberately not chosen to appear before the Court and therefore in these circumstances the learned trial Court has rightly rejected his application for setting aside ex-parte decree. Taking a dig at the argument of the learned counsel for the appellant, learned counsel for the respondent would urge that assuming it without admitting that it was a case of irregular service then too it was not a case wherein the learned Court below . ought to have exercised its discretion in favour of the appellant for setting aside ex-parte decree in the given circumstances. Negating the arguments of the learned counsel for the appellant on the issue that the order impugned has been passed without recording evidence of the rival parties, the learned counsel for the respondent would urge that it is not necessary for the trial Court to record evidence in each and every case wherein endeavor is made by the defendant for setting aside ex-parte decree. While inviting attention of this Court towards third proviso to Rule 13 of Order 9, learned counsel for the respondent has submitted that an ex-parte decree cannot be set aside merely on the ground of irregularity in summons. I have heard the learned counsel for the rival parties and perused the impugned order. The first and the foremost question involved in the matter is the method of service of summons, which was admittedly by way of substituted service. From the chronological facts enumerated hereinabove, it is amply clear that the learned trial Court has sent summons to the appellant by ordinary process followed by registered post but all those efforts have not yielded desired result. When . the mode of service of summons by registered post also proved abortive and the envelope returned back as unclaimed, the learned trial Court has permitted the respondent to serve the summons by way of substituted service. True it is that while ordering substituted service, the learned Court below has not recorded its satisfaction in the order dated 22nd April 2010 but there were cogent reasons available with the learned trial Court to permit the respondent to affect the service of summons by way of substituted service. One more redeeming feature is the correspondence between the Chairman of the Society and the appellant which are some facts relevant and germane throwing light on the factum of knowledge of the appellant about pendency of the suit before the learned trial Court. The object of service of summons is to apprise the defendant about pendency of the suit and therefore it is necessary that defendant must have knowledge about pendency of the suit against him. In the instant case, although the learned trial Court has permitted the respondent for substituted service, but while doing so it has not recorded its satisfaction in terms of Rule 20 of Order 5 CPC. Permitting a plaintiff to serve summons on the defendant by way of substituted service is a judicial order . and the same is required to be passed while recording a satisfaction that the defendant has avoided the service. In want of such a satisfaction, this exceptional mode of service cannot be permitted by a Court. As against this, irregularity of the procedure adopted by the learned trial Court, there are umpteen materials available on record to show that the respondent-plaintiff has made sincere endeavour to serve the appellant and a suit which was instituted in January 2009 was decided ex-parte on 24th of May 2011 after proceeding ex-parte against the appellant on 18th of January 2011. One more mitigating factor is that the learned Court below has ordered publication of summons in Hindi daily newspaper having wide circulation in District Thane by order dated 20th of November 2010 because earlier the summons were published in Marathi edition of the newspaper “Vaibhav”.. Thus, the learned Court below has taken all the cautions to apprise the appellant about pendency of the suit. On critical analysis of the factual backdrop of the instant case, it has come to the fore that this legal battle is between two siblings and money is the root cause of acrimony among them. A legal battle of such a nature is very unfortunate. Taking cognizance of the nature of legal . battle, this Court has also made endeavour to settle the dispute between both the siblings by way of sending this matter to mediation centre. In the mediation centre, the mediator has made all sincere efforts but nothing turned out and that effort of the Court proved futile, therefore, the mediator has returned back the file to this Court for its adjudication on merit. Examining the lis involved in the matter objectively and considering the matter in issue, this Court feels that basic tenets of justice warrants a decision of the suit after bipartite hearing and the technicalities may not be allowed to have march over the substantial justice. The law laid down by Apex Court in Smt. Yallawwa’s case (supra), therefore, can be applied in the facts and circumstances of the instant to farther the interest of justice and the impugned order as such cannot be sustained. However, taking into account the checkered history of this legal battle, it would be unjust to deprive the respondent from reaping the fruits flowing from an ex-parte decree and for that some conditional order is required to be passed for setting aside ex-parte decree. The Apex Court, in case of V.K. Industries & Ors. Vs. M.P. Electricity Board, Rampur, Jabalpur . [AIR2002SC1151, while setting aside ex-parte money decree under Order 9 Rule 13 CPC, has imposed a condition that more than ¼ of the decretal amount be deposited by the defendant for the said relief. In that case, the decretal amount was Rs.3,84,455.44 with interest @24% per annum and while setting aside the ex-parte decree, the Apex Court has held that reasonable conditions can be imposed by the Court in doing so. The Court made following observations in Para 5 to 7 of the verdict:
5. Ordinarily, a money decree is not stayed unconditionally and the judgment- debtor would be put on terms. Even so, such conditions must be reasonable having regard to all relevant factors. Although ex parte decree was passed against the appellants, once it is set aside on the ground of non-service of suit summons the money decree did not exist for execution. It is no doubt true that in restoring a case the Court may impose conditions to deposit costs or the decretal amount or some portion thereof or to ask the defendant to give security but such conditions should be reasonable and not harshly excessive. In the impugned order the appellants are put on terms to deposit a sum of Rs. 2,00,000/- and to furnish a bank guarantee for the remaining suit claim within a period of two months. In our view these terms are onerous, harsh and unreasonable in the facts and circumstances of the case and that too even before the trial of the suit on merits.
6. On 29-10-2001, the learned counsel for the appellants stated that within two weeks, a sum of Rs. 50,000/- shall be deposited in the trial Court and notice was issued on that day. During the course of . hearing the learned counsel informed that a sum of Rs. 50,000/- is already deposited in the trial Court.
7. We are of the view that it would be just and appropriate to direct the appellants to deposit a further sum of Rs. 50,000/- in the trial Court within a period of four weeks from today. The terms to deposit Rs. 2,00,000/- and to furnish a bank guarantee for the remaining suit claim shall stand modified as indicated above. The impugned order shall remain undisturbed in all other respects. Looking to the nature of the suit and some of the facts relevant and germane to the matter, showing semblance of proof that the appellant had knowledge about the pendency of the suit for granting indulgence to the appellant to contest the suit, certain conditions are required to be imposed in the interest of justice. Thus, applying the ratio decidendi of the V.K. Industries's case (supra) and taking into account the decretal amount of Rs.25,65,000/- with interest @ 6% per annum from the date of institution of the suit, the application of the appellant under Order 9 Rule 13 CPC is allowed and the ex-parte decree dated 24th of May 2011 is set aside and the order impugned dated 10th of April 2013 under Order 9 Rule 13 is hereby annulled subject to appellant's depositing Rs.7,00,000/- (Rupees seven lacs) . before the learned trial Court within a period of six weeks from today. The learned trial Court is directed to proceed with the trial expeditiously on depositing the aforesaid amount of Rs.7,00,000/- by the appellant and decide the suit as early as possible. The rival parties are directed to appear before the trial Court on 17th of October 2013. The appeal is accordingly allowed as indicated hereinabove. No order as to costs. (P.K. LOHRA), J.