High Court
Case Details
CRP 450/2012 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
Heard Mr. S.K. Saharia, learned counsel for the petitioner and Mr. S.S. Sharma, learned Sr. counsel appearing for the respondent. The petitioner, who was the defendant/judgment debtor in Title Suit No.1 9/2010, by the present petition has challenged the order dated 30.06.2012 passed by the learned Civil Judge, Bongaigaon, in Misc.(J) Case No.57/2011 seeking con donation of delay of 227 days in filing the application under Order 9 Rule 13 CP C, for setting aside the ex-parte decree passed in the said suit. The respondent herein instituted the said suit in the Court of the learn ed Civil Judge for specific performance of the contract, against the present pet itioner as defendant giving the following addresses in the plaint:- Sri Sanjib Kr. Singh, S/O Sri Dudhnath Singh, Resident of Station Road, Near Murari Hotel, Bongaigaon Town, Ward No.2, P.O. & District Bongaigaon, Assam. Presently residing at C/o Gyan Chan Juneja, Haryana Handloom, Paltan Bazar, Guwahati, Dist. Kamrup, Assam. The Trial Court issued summons in both the addresses i.e. Bongaigaon add ress and Guwahati address. The summons in Bongaigaon address was issued through the Court process and that in the Guwahati address was issued under registered p ost with acknowledgement due. The summons issued in Bongaigaon address was entru sted by the Nazir for service to one Mr. A. Das, which, however, was stated to b e served by one Basanta Das, the process server, on 25.11.2010 by affixing a cop y of the summon on a conspicuous part of the house of the Bongaigaon address giv en in the plaint. The summons issued in Guwahati address was returned with the p ostal remark (cid:28)not known (cid:29). The Trial Court based on the said report examined Sri Basanta Das, the p rocess server, and accepted the service of summons on the petitioner in Bongaiga on address. Since the petitioner did not appear, the suit proceeded ex-parte and accordingly the ex-parte decree was passed on 24.02.2011. The Trial Court, howe ver, did not pass any order in relation to the summons issued to the defendant i n the Guwahati address under registered post with A/D. The petitioner, thereafter, filed two applications, one under Order 9 Ru le 13 CPC for setting aside the ex-parte decree passed on the ground of non-serv ice of summons and the other under Section 5 of the Limitation Act seeking condo nation of delay of 227 days in filing the said application, which has been regis tered and numbered as Misc.(J) Case No.57/2011. The learned Civil Judge, vide order dated 30.06.2012 dismissed the appli cation filed under Section 5 of the Limitation Act refusing to condone the delay by holding that the summons were duly served on the petitioner on 25.11.2010 in Bongaigaon address and hence he had knowledge about the suit. Consequently the application filed under Order 9 Rule 13 CPC has also been dismissed. Hence the p resent revision petition. It has been contended by the learned counsel for the petitioner that sin ce the plaintiff in the plaint has given the present address of the defendant/pe titioner knowing fully well that he is out of the permanent address, the summons have to be issued and served in the Guwahati address given, which according to the plaintiff himself is the present address of the defendant. According to the learned counsel, though the summons in Guwahati address was issued, the same was not served, as it is evident from the record that the same returned with the po stal remark (cid:28)not known (cid:29). It has also been submitted that the plaintiff thereafte r did not take any steps to get the summons served in Guwahati address. The lear ned counsel further submits that the summons, which were purportedly served on t he brother of the petitioner/defendant in Bongaigaon address also cannot held to be properly served, as there is no mention about the service by affixing such s ummons on the conspicuous part of the house in presence of the witnesses, though the signatures of few persons appear on the backside of the said summon. It has also been submitted that in any case Basanta Das cannot serve the summons, as t he same was endorsed to another process server, namely, A. Das. The learned coun sel, therefore, submits that the order dated 30.06.2012 passed in Misc.(J) Case No.57/2011 needs interference and the delay in filing the application under Orde r 9 Rule 13 CPC may be condoned and the said application filed under Order 9 Rul e 13 may be allowed. On the other hand, the learned Sr. counsel appearing for the respondent/ plaintiff submits that in the plaint there are two addresses given, one is the p ermanent address and the other is the present address of the defendant and hence service in one of the addresses would be sufficient service. Referring to the s ummons served on the petitioner/defendant in Bongaigaon address, it has been sub mitted that since the mother and the brother of the petitioner/defendant refused to accept the summons when tendered, the process server has affixed a copy of t he summon on the wall of the petitioner/defendant’s residence in presence of the witnesses and as such the Court below has rightly held that the summons on the petitioner/defendant has been duly served. The learned Sr. counsel further submi ts that the endorsement of the summons for service to one process server and ser vice by another process server would not affect the proper service of summons. I have considered the submissions advanced by the learned counsel for th e appearing parties and also perused the materials available on record including the summons issued to the petitioner/defendant in both the addresses. As noticed above, the summons to the petitioner/ defendant was issued in Bongaigaon address through the process server of the Court and that of the Guwa hati address under registered post with A/D. The summons issued to Guwahati addr ess has returned with the postal remark (cid:28)not known (cid:29). Admittedly no further step has been taken by the respondent/plaintiff to get the summons issued and served on the petitioner/defendant in Guwahati address. The respondent/plaintiff in the plaint has specifically stated that though the petitioner/ defendant is a perma nent resident of Bongaigaon, he is presently residing at Guwahati and hence the present address of the petitioner/defendant has been given at Guwahati. That bei ng the position and it is being the case of the respondent/plaintiff that the pe titioner/defendant is residing at Guwahati, the summons have to be issued and se rved in the Guwahati address given in the plaint by the plaintiff. As discussed above, the summons issued in Guwahati address has not been served. That apart, perusal of the process server’s report dated 25.11.2010, whe reby the summons has been served by affixing a copy of the same on the wall of t he petitioner’s permanent residence, appears that the process server has not men tioned in his report that the service in that manner was made in presence of the witnesses. The names of two persons appearing in the backside of the said summo n also do not bear any date. The service of summons in that manner in presence o f the witnesses also, therefore, cannot be presumed. In view of the aforesaid discussion, I am of the view that the petitione r could prove the non-service of summons and also explain the delay occurring in filing the application under Order 9 Rule 13 CPC. Hence the impugned order dated 30.06.2012 passed by the learned Civil Ju dge, Bongaigaon, in Misc.(J) Case No.57/2011 is set aside. The delay in filing t he application under Order 9 Rule 13 CPC is condoned. The application filed unde r Order 9 Rule 13 CPC is also allowed, consequently the ex-parte decree is set-a side. The parties are directed to appear before the Trial Court on 17.08.2013, o n which date the petitioner/defendant shall file the written statement. The suit having been instituted in the year 2010, the Trial Court shall make all endeavo ur to decide the said suit within 6(six) months from the date of appearance. The revision petition is accordingly allowed. Registry is directed to send down the record forthwith so as to reach th e Trial Court before the date fixed by this Court for appearance of the parties.