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Punjab and Sind Bank Vs. Ramji Das Khanna and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberInterim Application No. 4247 of 1982 and Suit No. 162 of 1982
Judge
Reported inAIR1984Delhi175; 1984(6)DRJ178; 1983RLR437
ActsCode of Civil Procedure (CPC), 1908 - Order 37, Rule 3
AppellantPunjab and Sind Bank
RespondentRamji Das Khanna and anr.
Advocates: Ajit Singh and; M.G. Dhingra, Advs
Excerpt:
code of civil procedure order 37, rule 3--court ordered service by affixation if the defendants cannot be served personally. in his report the process server stated that having come to know that the defendant was out of delhi, he affixed the summons. no other effort was made. the report does not mention whether any copy of the plaint or any other document was affixed. the registrar did not make any enquiry whether service was sufficient.; that service is not in accordance with order 37, rule 3(1) of the code. rules 12 and 13 of chapter xxi of the original side rules have not be complied with. - - this rule prohibits the placing of the matter before the court unless the registrar is satisfied that the defendant has been duly served......filed on 1st february, 1982 a suit for recovery of rs 1,33,760.41 under order 37 of the code. summons in the prescribed form under order 37 of the code was issued for 23rd march, 1982. the defendants were not served. fresh summons were ordered to be issued for 5th may, 1982. the court in its order dated 18th may, 1982 did not treat the service for 5th may, 1982 as valid. fresh summons were issued to the defendants for 12th july, 1982 with the direction that, 'if the defendants cannot be served personally or they refuse to accept service, service be got effected by way of affixation'. it was reported that the defendants were served for 12th july, 1982 by affixation. no application for leave to defend was filed. on 2nd august, 1982 the suit was decreed under order 37 of the.....
Judgment:

Sultan Singh, J.

(1) This is an application under Order 37 Rule 4 Order 37 Rule 3(7), Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure (for short 'the Code') for setting aside the judgment and decree dated 2nd August, 1982.

(2) Punjab & Sind Bank plaintiff/non-applicant on the basis of a protrude for Rs. 55,000.00 dated 7th February, alleged to have been executed by the defendants, filed on 1st February, 1982 a suit for recovery of Rs 1,33,760.41 under Order 37 of the Code. Summons in the prescribed form under Order 37 of the Code was issued for 23rd March, 1982. The defendants were not served. Fresh summons were ordered to be issued for 5th May, 1982. The Court in its order dated 18th May, 1982 did not treat the service for 5th May, 1982 as valid. Fresh summons were issued to the defendants for 12th July, 1982 with the direction that, 'if the defendants cannot be served personally or they refuse to accept service, service be got effected by way of affixation'. It was reported that the defendants were served for 12th July, 1982 by affixation. No application for leave to defend was filed. On 2nd August, 1982 the suit was decreed under Order 37 of the Code.

(3) The defendants in this application allege that they were not served at all, that the summons were never tendered to them by the process-server, that the address of the defendant No. 2 given in the plaint was wrong as he has not been residing at that address, that he has been living in House No222- Mig Flats, Rajouri Garden Extension, New Delhi, that defendant No. 1 suffered heart attack about six months back and he was advised complete rest by the Doctor, that the defendants came to know of the ex-parte decree on 25th October, 1982 and after getting the Court file inspected, filed the present application on 2nd November, 1982. The allegations of the defendants are denied on behalf of the plaintiff.

(4) The short question is : whether the defendants were duly served for 12th July, 1982 Chapter Xxi of the Original Side Rules, 1967 of this Court prescribe the procedure for service upon the defendants. Rule 1 requires personal service. Rule 10 provides the procedure where defendant refuses to accept service or cannot be found. It provides that if the serving officer after due and reasonable diligence does not find the defendant and there is no agent empowered to accept service on behalf of the defendant, the serving officer has an authority to affix the copy of the summons on the outer door of the house where the defendant originally resides or carried on .business. The process-server is to return the summon with his report and the efforts made by him to serve the defendant. Rule 12 of Chapter Xxi further provides that the serving officer shall make an affidavit stating the number of times and dates when he went to the house of defendant, the attempts made by him to find the defendant and whether any adult male member of the family to be served was residing with him. Rule 13 provides affixation of the summons on the outer door. This rule further provides that a notice is also to be affixed notifying the defendant that he can obtain upon an application a copy of the plaint. The process-server is also required to report about the notice required to be affixed by Rule 13. Rule 14 of this Chapter further provides the procedure for determining the sufficiency of service. Such an enquiry is to be made by the Registrar. This rule prohibits the placing of the matter before the Court unless the Registrar is satisfied that the defendant has been duly served. Chapter Xv of the Original Side Rules and Order 37 of the Code prescribes the procedure to be followed in Summary Suits. Rule 8 of Chapter Xv provides that under special circumstances the decree may be set aside. Rule 12 of Chapter Xv further provides that the provisions of Order 37 of the Code as far as they are not inconsistent with the provisions contained in Chapter Xv of the said Rules shall be applied to suits to which Chapter Xv applies. Order 37 Rule 3(1) of the Code prescribes that the plaintiff shall together with the summons serve on the defendant a copy of the plaint and the annexures thereto. Thus it is apparent that for due service upon the defendant service of summons, copy of plaint along with the copy of the annexures with the plaint is necessary.

(5) In the instant case the learned counsel for the defendants has referred to the reports of the process-server on the summons issued by this Court for 12th July, 1982. Ramji Das Khanna is defendant No. 1. On 29th June, 1982 the process-server, according to his report, went at the address given in the summons and came to know that Ramji Das Khanna was out of Delhi. He thereforee, affixed the summons. No other effort was made. The report does not mention whether any copy of the plaint or any other document i.e. annexure to the plaint was affixed. It is thereforee, apparent that this service is not in accordance with the requirement of Order 37 Rule 3(1) of the Code. In the case of Vinod Kapoor defendant No. 2, the process-server on 3rd June, 1982 affixed a copy of the summons. No other effort was. made in this case also. This report does not disclose whether any copy of the plaint or any other annexure was affixed. Reports on both the summons to the defendants for 12th July, 1982 show that the summons were affixed. In the case of defendant No. 2, it is stated on behalf of the defendants that the address is wrong. Even if the address is correct, service upon either defendant was not effected in accordance with the Original Side Rules of this Court. The process-server is to make efforts to serve the defendant. The process-server has not complied with Rules 12 and 13 of Chapter Xxi of the Original Side Rules. No enquiry was held by the Registrar of this Court to determine whether the service under the circumstances was sufficient. It is apparent that the service was insufficient. No attempt was made to get the defendants served in accordance with Order 37 Rule 3(1) of the Code or Chapter Xxi of the Original Side Rules. The process-server did not make any effort to serve the defendants. He did not find whether any adult male member of the family was residing with him. Thus I am of the opinion that the process-server did not comply with the requirements of law which are mandatory. Further the affixation was invalid as the copies of the plaint and the annexures which were required to be served, were never affixed. It is thereforee, held that the defendants were not duly served. This is a sufficient circumstance within the meaning of Rule 8 Chapter Xxi of Original Side Rules and Order 37 Rule 4 of the Code to set aside the decree dated 2nd August, 1982 passed under Order 37 of the Code. The judgment and decree dated 2nd August, 1982 are thereforee, set aside with no order as to costs.


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