Judgment · High Court

The plaintiffs in Title Suit No.37/2005, by the present petition has challenged the order dated 4th September, 2010 passed by the learne d Munsiff No.3, Kamrup at Guwahati in the said suit rejecting the petition filed by them under Section 5 of the Limitation Act seeking condonation of delay in f iling the application under Order 9 Rule 4 CPC and consequently, rejecting the s aid petition filed under Order 9 Rule 4 CPC for recalling the order dated 13th F ebruary, 2009, whereby and where-under the suit of the plaintiffs has been dismi ssed for default, thereby refusing to restore the suit to file. I have heard Mr. Upadhyay, learned counsel for the petit ioners and Mr. Sheeladitya, learned counsel appearing for the respondents. Referring to the service report submitted by the process server on 17th September, 2008, which is annexed as Annexure-6 to the revision petition, on the basis of which the learned Munsiff has recorded the finding tha t despite service of notice, the plaintiffs/petitioners have not entered appeara nce and hence, the suit was dismissed for default, it has been submitted by the learned counsel for the petitioners that it is evident from the said service rep ort that the summons issued were not personally served on the plaintiff Nos.1, 2 and 4.

It has also been submitted that though Rule 15 of Order 5 CPC permits t he process server for service of notice on any adult member of a family, for aff ecting such service and for acceptance of such service report, the conditions st ipulated in Order 5 Rule 15 CPC have to be complied with and in the instant case , it is evident from the process server’s report that there is no indication tha t the petitioner Nos.1, 2 and 4 were not present at the residence when the notic es were sought to be served and there is no likelihood of they are being found a t the residence within a reasonable time and as such, the learned Court below ou ght not to have accepted the report of the process server relating to the servic e on the petitioner Nos.1, 2 and 4. It is also submitted that though the notices were addressed to the petitioner No.3, Rajen Kumar, it is evident from the said process server’s report that the same was served on one ’Sri Raden Kumar’ and a s such, the service of notice on the petitioners ought not to have been accepted by the learned Court below.

The learned counsel, therefore, submits that the learned Court below ought not to have rejected the application filed under Secti on 5 of the Limitation Act seeking condonation of delay and consequently the app lication filed under Order 9 Rule 4 CPC. The learned counsel appearing for the respondents, on th e other hand, referring to the provisions contained in Order 5 Rule 15 CPC has s ubmitted that the service of summons can be affected on any adult member of the family and since all the petitioners are admittedly living in the same family in the same address, no illegality can be found in accepting the service of notice s on the petitioner Nos.1, 2 and 4, the same having been accepted by the petitio ner No.3. It has also been submitted that the mention of the name ’Raden Kumar’ is nothing but the slip of pen, which in fact addressed and served on Shri Raje n Kumar, the petitioner No.3.

The learned counsel, therefore, submits that the application seeking condonation of delay as well as the application filed under Order 9 Rule 4 CPC have rightly been rejected by the learned Court below. I have considered the submissions of the learned counsel appearing for the parties and also perused the materials made available on reco rd in the revision petition. It appears from the process server’s report dated 17th S eptember, 2008 that the summons issued to petitioner Nos.1, 2 and 4 were receive d by one Shri Raden Kumar. Even assuming that Raden Kumar and Rajen Kumar is on e and same person, the services on the petitioner Nos.1, 2 and 4 cannot be accep ted unless a report is submitted by the process server to the effect that they w ere absent from the residence when service of summons was sought to be effected and there is no likelihood of their being found at the residence within a reason able time, as required under Rule 15 of Order 5 CPC. It also appears that thoug h summons were issued in the name of Rajen Kumar, the same was received by one S hri Raden Kumar.