(1). This revision has been presented by the defendant, the Punjab oil Expeller Company of Ghaziabad, against an order of the learned additional District Judge, Delhi, dated 17-8-1962, affirming on appeal an order of a learned Subordinate judge 1st Class Delhi made on 26-3-1962 declining to set aside the exparte order dated 13-6-1958 on the ground that there was due service of the defendant and that the application was barred by time under Article 164 of the Indian Limited Act.
(2) It would be helpful at this stage to state the relevant facts. The suit out of which these proceedings arise was instituted on 28-3-1958 for the recovery of Rs.1,537-5-9 and the same was registered on 3-4-1958. On the date of registration of the suit, it was ordered that summonses should go for 12-5-1958. No intermediate date was fixed. There is a ntoe at the buttom of the order suggesting that in case of refusal, service should be affected by fixation. This ntoe is obviously somewhat suspicious. On 12-5-1958, the order shows that the plaintiff's counsel was present and the report was that service had been effected by affixation but the defendant was absent. The case was ordered to be called later. The same day at about 2.30 hr P.M. exparte proceedings were directed to be taken and the case was adjourned to the following day for the plaintiff's evidence. On the following day viz., 13-5-1958 after recording the evidence of P.W.1 the Court passed an exparte decree for Rs.1,537-5-9 with costs.
(3). On 17-11-1985, an execution application was presented in which ntoice was ordered to be issued on 20-11-1958, but the same was dismissed on 10-1-1959, because no process has been filed and no one appeared at the hearing. It is difficult to be understand ass to why it was gto dismissed in such circumstances and indeed no Explanationn has been offered at the bar for this proceeding. Second application for execution was presented on 6-3-1961. In this application, ntoice was issued to the judgment-debtor and the judgment debtor applied on 16-5-1961 for settling aside. The exparte decree. An application was also made on 20-5-1961 for staying execution proceedings pending the decision of the application for setting aside the exparte decree and in the proceeding for setting aside the exparte decree, the following three issues on merits were framed.
1. Whether the application is within time?
2. Whether there is sufficient cause for the setting aside of the exparte decree? And
3. Whether the defendant was nto duly served?
The executing Court deciding issues No.2 and 3 came to the conclusion that it had nto been proved that the defendant had nto been duly served. There was accordingly no sufficient cause for setting aside the exparte decree. After so holding the executing Court also observed that under Art.164 of the Indian Limited Act, the petition was barred by time. For these reasons, the objections were dismissed on 26-3-1962.
(4). On appeal, the learned Additional District Judge affirmed the conclusion of the executing court. According to the Court of Appeal, the Ram process-server. R.W.I. had actually entered the business premises of the defendant and asked the persons working there about the owners of the firm. On being told that they did nto know as to there the owners of the firm were, the process server waited for some time and pasted the summonses outside the business premises. The court of appeal has observed that the persons working at the premises of the defendant did nto give any assistance to the process-server, though they were duty bound to co-operate with him in order to trace out the defendant. The silence order to trace out the defendant. The silence and non-cooperation of the said workers, according to the learned Additional District Judge, was intentional and at the instance of those who had employed them. With this observation, the learned Additional District Judge felt convinced that the defendant had purposely remained away from the process server and the inmates of the business premises had refused to give him the assistance under the conspiracy and a plan. The process server being an official of the Court must be taken as a disinterested and impartial person. After so observing, the Court of First Appeal concluded that it was nto believable that the defendant never came to know about the case. The affidavit of Ude Ram Exhibit R.1 was also considered to be sufficient for rebutting the statements of Qwazir Chand and Harish Chander, witnesses of the judgment debtor. The appeal was, for the reasons just stated dismissed.
(5). On revision before me, the learned counsel for the petitioner-judgment debtor has very strongly argued that the proceedings, and the orders of the two Courts below are tainted with an illegality and a material irregularity in the exercise of their jurisdiction which has resulted in manifest injustice to the petitioner and the impugned orders deserve to be set aside and quashed. I am inclined to agree with the submission.
(6). The issue and service of summonses is provided in the Code of Civil Procedure in Order V. Chapter 7-B Vol Iv, High Court Rules and orders, also contains instructions on mode of service of processes by Civil Courts rule 1 of the Rules in sub-paragraph (a) of Ch 7-B provides that every attempt should be made to effect personal service in the first instance and failing that service, on an agent or a member of the family. The process server should go again and again for this purpose, if there is time before the date fixed for scrutiny of service,. It is emphasized that service in any of the ways enumerated in Order V, Rules, 12 to 16 of the Code of Civil Procedure, should be insisted upon and service by affixation as provided in Order V, Rule 17, should nto allowed till after the date fixed for, brings to the ntoice of the Courts below what is expressly scrutiny. This rule prominently enacted in order V. Rule 12 of the Code, which lays down that wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case, service on such agent shall be sufficient.
Under Rule 13 of order, V, in a suit relating to any business or work against person who does nto reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who at the time of service personally carries on such business or works for such person within such limits, is to be deemed good service. Rule 3 in Chapter 7-B (a), High Court Rules and orders, Vol Iv, also imposes a duty on the plaintiff to his best endeavor to discover the defendant's residence and satisfy the Court that the defendant is evading service and cannto be served in the ordinary way. The matter of service is thus of primary importance as it is one of the fundamental rules of our law of procedure that parties should have a fair and reasonable ntoice of legal proceedings, against them which they are entitled to defend. This rule has its rotos in our sense of justice and fair-play. For the purpose of ensuring that every effort is made to effect personal service, the Court has a duty to pay personal attention to matters connected with the issue and service of processes and it may well be considered a dereliction of duty to leave, this important function exclusively to the ministerial staff off the Court. An attitude of indifference to this aspect on the part of the Court may nto only delay disposal of suits but may, on occasion as in the present case, result in unjustified ex parte decree and orders. Part (b) of chapter 7-B particularly Rules 2 and 3 thereof, and part (c) Rules I to 4, High Court Rules and orders, Volume Iv contain important directions for the trail Court which deserve compliance.
For our present purpose rule 3(v) of part (c) chapter 7-B is directly in point which imposes an obligation on the court to satisfy itself after taking the process-server's affidavit or statement on solemn affirmation and after further enquiry as may be necessary, the reasonable efforts were me without success to serve the defendant personally and then declare whether the summons was duly served. The legal position as just mentioned, seems to me to be incontestable. It is accordingly unnecessary to deal at length with the decisions cited on behalf of the petitioner. I would only briefly ntoice them.
Gopiram v addl. Income-tax Officer, : 37ITR493(Cal) lays down that under O.5, R.17, Code of Civil Procedure, read with S.63, Income-tax Act, the mere fact, that the serving officer went to the defendant's address and found him absent is nto sufficient to establish that the defendant could nto be found Ouseph Cherian v K.G. Gopalkrishanan, Air 1957 trav co 257, provides that substituted service without using reasonable diligence to effect personal service is bad. Tripura modern ban v Bansen and C0. : AIR1952Cal781 . Lays down that in case of service by affixation. It is nto sufficient to state in the affidavit of service that the process-server was satisfied upon enquiry that the defendant could nto be found at his residence within a reasonable time. Ttoa v Badri Pershad, Air 1930 Lah 192, lays down that there where the petitioner being absent, the summons is affixed on the door of his house, the Court is nto justified in holding that there was proper service ntowithstanding previous refusal of the petition to accept service. In Mohan Lal v Sundar Lal Air 1949, Ep 295, a learned Single Judge held as invalid the service effected under order, V rule 17, merely on the process-service being informed at the defendant's house that the latter had gone to a neighbouring town. Arjan Singh v. Hazara Singh (1965) 67 Pun Lr 643, refers to the various provisions of order V and the directions contained in Chapter 7-B Vol.IV, High court rules and Orders, and lays down that attempt should, in the first instance, be always made to effect personal service and the process-server should go again and again to the place of service to achieve this purpose
(7). In the light of the foregoing observations, let us see what has happened in the present case. When the trail Court ordered the summons to go for 12-5-1958, no intermediate date was fixed for scrutiny. On 12-5-1958, also do nto find any material on the record which would show that the presiding Officer of the trail Court had paid any personal attention to the matter of service of summons. Indeed, the proceedings of 3-4-1958, show Pro ntoe that in case of refusal, service should pro effected by affixation which is nto only contrary to all instructions contained in the high Court Rules and orders but is toherwise also somewhat suspicious. Exhibit R-1 is a form of affidavit in Urdu pursuant to order V rule 18 of the code of civil Procedure, the blanks of which have been filled in by the Ude ram chaprasi who acted as process-server in Hindi. It is dated 14-4-1958. He has sworn that on 13/14-4-1958, he went to Ghaziabad and tried to search the Agent of the Punjab Oil expeller Company, but he refused to take the summons.
Thereupon he affixed one copy outside the premises. No one attested it. The learned subordinate Judge did nto take pains to examine to process-server which in my opinion he should have done on the facts and circumstances of this case. The order directing exparte proceedings on this material was in my opinion, wholly unjustified and clearly contrary to the directions issued by the court in chapter 7-B, Vol Iv, High court Rules and orders, When the application for setting aside the ex parte order was made, Ude Ram was again examined as R.W.1. He has merely proved exhibit R-1 in his examination in-chief and all that he has said is that at that time there were several persons whom the could nto recognise. He deposed in cross examination that he did nto know Harish chander or his brtohers. He went to the workshop and found 15 persons present there and enquired about the owners of the workshop . He was told that he could nto meet the owners. The factory had a door on the roadside and the room and the door were closed. As no one was willing to accept the ntoice, it was affixed. He waited for considerable time for the owners but they did nto arrive and then the witness came back. This evidence to say the lest, is most uninspiring and to rely on this evidence for proof of due service is, in my view, travesty of justice. The learned Subordinate, judge dealing with the application for setting aside the ex parte decree has nto only completely ignored the real material on the record but has also nto cared to apply his mind to the law of the subject. Apparently, the matter has been dealt with in a highly superficial manner without application of judicial mind. If there was no due service, then obviously, the finding on the question of limitation would also be vitiated.
There is no evidence that the Judgment debtor came to now of the decree prior to the date, which according to his evidence, was the date on which he came to now of it. The circumstances and the manner, in which the first execution application was gto dismissed for non-payment of process and non-prosecution, are also nto without significance. In the absence off any cogent Explanationn, it does nto seem to suggest an inclination on the part of the decree-holder to keep the existence of the decree concealed from the judgment-debtor, at least, it does nto reflect the usual keeness or anxiety on the part of the decree-holder to reap the fruits of his decree with the normal promptitude expected of him. We find that no Explanationn has been offered for the indifference reflected in the manner in which the fist execution, application was conducted. Unfortunately, the learned Additional District Judge has also dealt with the matter on appeal with the same superficiality and he to has nto cared to apply his mind fully to the evidence on the record or to the correct legal position when dealing with the question of due service.
The observation of the learned additional District Judge that persons, who were working on the business premises, were duly-bound to co-operate with the process-server in order to trace out the defendant, and their silence and no-co-operation showed that the defendant was purposely keeping away from the process-server, betrays his erroneous approach and his conclusion is, in my view, far from justified on the existing material on the record. Neither of the two Courts below have considered what the law enjoined on the trial Court when coming to a vital decision to proceed ex parte or when considering the no less important question of setting aside the ex parte decree. The orders of the Courts below are in my opinion, clearly tainted with illegality and material irregularity in the exercise of their jurisdiction, and being erroneous, buth on facts and in law, deserve to be quashed and set aside. That they have resulted in unjustice is beyond dispute.
(8). I may point out that no attempt has been made at the bar to show if at Ghaziabad the law relating to service by affixation is different and if the process-server had complied with the law in force there. It was assumed that the directions contained in the High Court Rules and orders, as in force in Delhi, governed the case: of course the Code of Civil Procedure would apply.
(9). For the foregoing reasons, I allow this revision petition and reversing the orders of buth the Courts, below set aside the ex pare decree dated 13-5-1958 and restore the original suit on the list of pending suits in the Court of first instance and direct that the suit be tried and decided in accordance with law. The parties have been directed through their counsel to appear in the trial Court on 20-12-1966 when a short date would be given for further p proceedings in accordance with law and in the light of the observations made above. The petitioner is entitled to his costs buth there and in the Courts below.
(10). Petition allowed..