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Raghubir Sahai Bhatnagar Vs. Bhakt Sajjan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 499 of 1973
Judge
Reported inAIR1978All139
ActsCode of Civil Procedure (CPC) , 1908 - Order 5, Rule 17 - Order 9, Rule 13
AppellantRaghubir Sahai Bhatnagar
RespondentBhakt Sajjan
Appellant AdvocateK.C. Saksena, Adv.
Respondent AdvocateS.C. Khare and ;K.N. Tripathi, Advs.
DispositionApplication dismissed
Excerpt:
.....be sufficient cause for his absence - difference between illegality and irregularity - failure of process server to affix summon which defendant has refused to accept on outer door of his residence amounts to mere irregularity. - - confers jurisdiction on the court to set aside an ex parte decree if it is satisfied that the summons was not duly served on the defendant or that he was prevented by any sufficient cause from appearing when the suit was called for hearing. the summonses were issued by the trial court to the applicant on his local address as well as at the place of his posting at mathura as the plaintiff had made a prayer that the summons be served on the defendant at both the addresses. the courts below placed reliance on the report of the process server as well as on the..........was the date fixed for defendant's appearance and hearing of the suit. on 17th aug. 1972, the process server delivered the summons to the applicant personally in the civil court compound at allahabad in the presence of two clerks of advocates and the plaintiff's son. the applicant after reading the summons refused to acknowledge it, instead, he returned the same to the process server saying that the summons should be sent to him at his office address at mathura. the process server made a report to the trial court that the defendant-applicant had refused to accept the summons and he mentioned the names of the witnesses who were present. the trial court held the service of summons sufficient and passed orders for proceeding ex parte. on sept. 30, 1972, the trial court passed the ex.....
Judgment:

K.N. Singh, J.

1. This revision is directed against the order of the First Additional District Judge, Allahabad dismissing applicant's revision filed under Section 25 of the Small Cause Courts Act. The revision came up for hearing before a learned Single Judge of this Court. He was of the opinion that since the question involved in the case was important one, which very frequently arises in the courts below, an authoritative decision was necessary to be given by a larger Bench. At the instance of the reference made by the learned Single Judge, the revision has come up before us for hearing.

2. Briefly, the facts giving rise to this revision are that the applicant was a tenant of a house situated in Allahabad of which the opposite party is the landlord. The opposite party filed a suit against the applicant for recovery of arrears of rent and his ejectment before the Court of Judge, Small Causes at Allahabad. On the date of hearing fixed by the court, the applicant-defendant was absent; the Court held service of summons sufficient and decreed the suit of the plaintiff ex parte on 28-9-1972. The applicant filed a restoration application under Order IX Rule 13 of the Civil P. C. on the ground that there was no due service of the summons and he had no knowledge of the date of hearing. The trial court dismissed the application holding that the petitioner had knowledge of the date of hearing and he had no sufficient cause for his absence on the date of hearing. The defendant-applicant thereafter preferred revision against the order of the trial court before the District Judge dismissing the restoration application. The revision was dismissed and the findings of the trial court were affirmed. The Additional District Judge held that the applicant had refused to accept the summons and he had full knowledge of the date of hearing fixed in the suit and he had no valid cause or reason for his absence. Aggrieved, the defendant-applicant has filed this revision under Section 115 of the Civil P. C. for setting aside the ex parte decree and orders of the courts below.

3. Order IX Rule 13 of the Civil P. C. confers jurisdiction on the court to set aside an ex parte decree if it is satisfied that the summons was not duly served on the defendant or that he was prevented by any sufficient cause from appearing when the suit was called for hearing. In the instant case, the applicant in his restoration application and the affidavit filed in support thereof had asserted that the summons was not duly served on him and he had no knowledge of the date of hearing and, as such, there was sufficient cause for his absence when the suit was called for hearing. The summonses were issued by the trial court to the applicant on his local address as well as at the place of his posting at Mathura as the plaintiff had made a prayer that the summons be served on the defendant at both the addresses. 29th Sept. 1972, was the date fixed for defendant's appearance and hearing of the suit. On 17th Aug. 1972, the process server delivered the summons to the applicant personally in the civil court compound at Allahabad in the presence of two clerks of advocates and the plaintiff's son. The applicant after reading the summons refused to acknowledge it, instead, he returned the same to the process server saying that the summons should be sent to him at his office address at Mathura. The process server made a report to the trial court that the defendant-applicant had refused to accept the summons and he mentioned the names of the witnesses who were present. The trial court held the service of summons sufficient and passed orders for proceeding ex parte. On Sept. 30, 1972, the trial court passed the ex parte decree against the defendant-applicant.

4. The defendant-applicant's plea raised in his application for setting aside the ex parte decree that the summons was not served on him and that he had no knowledge of the suit or the date fixed therein was rejected by the courts below. The courts below placed reliance on the report of the process server as well as on the affidavit of persons present at the time of refusal and also the plaintiff's son. an advocate of the Court, and recorded findings that the defendant-applicant was absent deliberately despite knowledge of the date of hearing in the suit. The findings of the courts below are findings of fact which in our opinion, do not suffer from any patent error of law and it is not open to this Court to reconsider the evidence or record fresh findings in the present proceedings.

5. Shri K. C. Saksena, learned counsel for the applicant, contended that even on the findings recorded by the courts below there was no due service of summons on the defendant-applicant as the process server failed to comply with the procedure as laid down under Order V, Rule 17 of the Civil P. C. inasmuch as on the defendant's refusal to accept the summons the process server did not affix a copy of the summons at the outer door or at some other conspicuous place of the defendant's house in which the defendant may have been ordinarily residing or carrying on his business. We have given our anxious consideration to this question but we find no merit in it. The Civil P. C. provides various modes for service of summons on the defendant. Firstly, service may be effected by tendering or delivering summons to the defendant personally by an officer of the Court and if it is not practicable to serve the defendant personally then summons is to be personally served on the agent authorised to accept the same on behalf of the defendant (Order V, Rule 10). Secondly, service may be made on an adult male member of the house of the defendant who may be residing with him if the defendant cannot be found or has no authorised agent who could accept service. The third mode of service is prescribed by Rule 17 which lays down that where the defendant or his agent or other person of his family refuses to sign the acknowledgement or where the serving officer cannot find the defendant or an agent empowered to accept service of summons or any other person on whom service can be made, the serving officer is to affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant may ordinarily be residing or carrying on business. The serving officer is required to return the original to the court with a report stating that he had affixed the copy of the summons on the door along with the name and address of the persons in whose presence the copy may have been affixed. Rule 20 contains provisions for substituted service by affixing a copy on some conspicuous place in the court house or upon some conspicuous part of the house in which the defendant is known to have last resided or carried on his business. Rule 20-A provides for service of summons on the defendant by registered post in addition to or in lieu of other modes of service of summons.

6. It is true that the process server did not make any effort to affix the copy of the summons at the outer door of the defendant's place of residence on his refusal to accept the same. In our opinion, this defect was not substantial enough to vitiate the service of summons. The purpose of issuing summons is to give intimation to the defendant of the suit, the court, and the date fixed for his appearance and in order to achieve that purpose the legislature has laid down detailed procedure for service of summons on the defendant. Where ex parte decree is passed in the defendant's absence, he is entitled to get the decree set aside under Order 9 Rule 13 if he satisfies the court that the summons was not duly served on him and he had sufficient cause for his absence. But in view of the proviso added by the Allahabad High Court to Order 9 Rule 13 an ex parte decree cannot be set aside on the ground of any irregularity in the service of summons, if the court is satisfied that the defendant had knowledge, but for his wilful conduct he had sufficient time to appear and answer the plaintiff's claim. The proviso added by this Court has now been ingrafted in Rule 13 itself by Parliament by the Amending Act No. 104 of 1976. Admittedly, at the relevant period when the question arose before the courts below the proviso as added by this Court ?was in force. Both the courts held that the process server's failure to affix the summons at the outer door of the defendant-applicant's place of residence was a mere irregularity and since the defendant-applicant had knowledge of the date of hearing, he had no sufficient cause for his absence. We. are of the opinion that the courts below have rightly held that the defect, if any, in the service of summons was a mere irregularity and since the defendant-applicant had knowledge of the date of hearing he had no sufficient cause for his absence and as such the ex parte decree could not be set aside.

7. Sri K. C. Saksena contended that failure to affix the summons at the outer door of the defendant's place of residence or business was not an irregularity, instead it was an illegality, as such the proviso to Order IX Rule 13 C. P. C. was not applicable. We find no merit in the contention. As noted earlier, the primary purpose of prescribing procedure for service of summons is to ensure that the defendant receives information and knowledge of the plaintiffs suit and the date of hearing. If the procedure prescribed under Order V Rule 17 is not strictly followed and if it is established that the defendant had knowledge of the plaintiff's claim as also of the date of hearing the proviso to Order IX Rule 13 would be attracted and the ex parte decree cannot be set aside. The proviso comes into play when some irregularity occurs in the service of summons. There is difference in illegality and irregularity. Irregularity contemplates defect in procedure and non-compliance of the prescribed formality which may not be of substantial nature. Illegality, on the other hand, connotes contravention of statute which may in some cases make the action void. Illegality contemplates an action forbidden by law while irregularity is mere defect in procedure. If this basic difference in the two expressions is kept in mind, the expression 'irregularity' in the service of summons occurring in the proviso added to Order IX Rule 13 would mean defect in following the procedure prescribed for the service of summons. Not doubt. Order V Rule 17 requires that on defendant's refusal to accept the summons the process server should affix the same on the outer door of the defendant's place of residence or business, but failure of the process server to go through the prescribed formality of affixting the summons at the outer door is a technical fault amounting to an irregularity.

8. In Pulukuri Kottaya v. Emperor (AIR 1947 PC 67), the Privy Council interpreting Section 537 of the Cr. P. C. considered the question whether non-compliance of an express provision of law would amount to an irregularity. The Privy Council held that distinction between illegality and irregularity was based on the degree rather than kind; if there was substantial compliance of the procedure prescribed, the defect, if any, would be irregularity but if the non-compliance was of mandatory provision of law that would result in illegality. In the intant case, there is ample evidence to show that the process server had personally tendered the summons to the defendant and he had acquired knowledge about the plaintiff's claim and the date of hearing in the suit. Any failure of the process server to affix the copy of the summons on the door of the defendant's' house was a mere irregularity. No doubt the process server is required to comply with the procedure required under Order V, Rule 17 and in case of failure to affix a copy on the outer-door of the house of the defendant, the service of summons may not be sufficient strictly according to law but if the defendant applies for setting aside of an ex parte decree, the defendant must prove that he had no knowledge and he had sufficient cause for his absence. If he fails to do so, the trial court, in view of the proviso to Order IX, Rule 13, would be justified in refusing to set aside the ex parte decree even though the process server had failed to affix a copy on the door of the defendant's house.

9. In Nathu Ram v. Salim Abdul Karim : AIR1933All165 . Iqbal Ahmad, J. held that failure to effect service by affixation of a copy of the summons on the door of the defendant's residence was a mere irregularity in the service of summons and simply because of the irregularity the defendant was not entitled to have the ex parte decree set aside, if the defendant knew or but for his wilful conduct would have known of the date of hearing of the suit. The learned Judge further held that though provisions of Order V, Rule 17 were mandatory but the proviso to Rule 13 of Order IX cures defect, if any, in service of summons. The facts of the instant case are quite similar to those involved in Nathu Ram's case. In Anaithalayan v. Marudamuthu : AIR1953Mad528 , Venkatarama Aiyar, J. considered this question and the effect of the proviso added by the Madras High Court to Order IX, Rule 13 which was substantially the same as added by this Court, and held that the proviso applies to all those cases in which there is failure to observe the procedure for service of summons as laid down under Order V, Rule 17. In that case also the defendant had refused to accept the summons but the process server had failed to affix the summons on the outer door of his house. The trial Court held the service of summons sufficient and passed ex parte decree. The defendant's application for setting aside the ex parte decree was rejected on the finding that the defendant had notice of the date of hearing in sufficient time and failure of the process server to affix the summons on the outer door was merely an irregularity as contemplated by the proviso. That order was upheld by the Madras High Court. We respectfullly agree with the view of Iqbal Ahmad, J. and Venkatarama Aiyar, J. as expressed in the aforesaid Cases.

10. We would now consider the cases cited by Sri Saksena in support of his contention that failure of the process server to affix the copy of the summons on, the outer door of the defendant's residence amounts to violation of a mandatory provision of law and the ex parte decree is liable to be set aside. In Ganesh Mal Bhawarlal v. Kesoram Cotton Mills Ltd. : AIR1952Cal10 a learned single Judge held that the procedure prescribed by Rule 17 of Order V for service of summons on the defendant by affixation was mandatory and failure of the process server to affix the copy of the summons would be no service in the eye of law. It is noteworthy that the learned Judge had no occasion to consider the effect of the proviso to Order IX. Rule 13 as no proviso had been added to Rule 13 of Order IX by the Calcutta High Court. In our case, the existence of the proviso makes all the difference and the principle laid down by Ganesh-mal's case does not lend any support to the applicant's case.

11. In Radh Ballav v. Dayal Chand : AIR1962Ori15 , a learned single Judge of Orissa High Court held that service of summons on the defendant by registered post was not sufficient, as such the ex parte decree was rightly set aside by the court below. The learned Judge considered the Orissa amendment to Order IX Rule 13 which also contained a proviso to the effect that no ex parte decree shall be set aside on the ground of irregularity in the service of summons. The learned Judge observed that the proviso would apply in a case where there was irregularity in the mode of service of summons but not in a case where there was no service of summons at all. The learned Judge on the facts of Radha Ballav's case held that the service of summons by registered post was not sufficient. It is pertinent to note that Rule 20-A of Order V which confers power on the court to effect service on the defendant by registered post was added by the Central Act 66 of 1956. The learned Judge did not consider the effect of that rule. Moreover on the evidence available in that case the learned Judge had recorded a finding that the plaintiff had failed to prove that the registered envelope which was served on the defendant by postal authorities contained the summons. It was in these circumstances that the ex parte decree was set aside. None of the circumstances available in Radha Ballav's case are present in the instant case. In Smt. Jaggi v. Bhagwan Dass (1969 All LJ 1144), K. B. Asthana, J. (as he then was) held that the trial court was not empowered to proceed ex parte unless it was proved that the summons was duly served, it was the duty of the court to satisfy itself that the summons was duly served before proceeding to hear the said suit ex parte. The learned Judge further held that the defendant's knowledge about the proceedings in the suit at any subsequent stage was not sufficient to uphold the ex parte decree. The facts and circumstances giving rise to the revision in Smt. Jaggi's case were quite different and the learned Judge did not consider the proviso to Order IX Rule 13 In Mohan Dhobi v. Smt. K Devi (1976) All LJ 174, it was held that where the process server reported that the defendant met him and he took the summons and a copy of the plaint and refused to sign the counterfoil of the summons, there was no service in law as the process server failed to affix a copy of the summons on the outer door or some conspicuous part of the defendant's house as required by Order V Rule 17. The learned Judge did not consider the effect of the proviso to Order IX Rule 13. Moreover, the facts in Mohan Dhobi's case were quite different. The learned Judge recorded findings that the defendant had failed to prove by positive affirmative evidence either by producing the process server or witnesses to show that the defendant (plaintiff-appellant?) had refused to accept the summons, and the notice. In the absence of any such evidence it was held that there was no service of summons on the defendant and the suit was wrongly decreed ex parte. In the instant case, no such situation exists, the process server as well as the witnesses had filed their affidavits and the courts below have recorded a finding of fact that the process server tendered the summons to the defendant and he had knowledge of the suit. For all these reasons the authorities cited by the learned counsel for the applicant do not support his contention.

12. In view of the above discussion, we are of the opinion that the applicant had failed to make out any sufficient cause for his absence on the date of hearing of the suit and the courts below rightly rejected his application for setting aside the ex parte decree. The application fails and is accordingly dismissed, but there will be no order as to costs.


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