Rajesh Kochhar
v.
Babu Ram

(High Court Of Himachal Pradesh)

Civil Revision No. 27 Of 1992 | 18-12-1992


Devinder Gupta, J.

1. This civil revision was instituted on 25th February, 1992. Since the Respondent had put in appearance on the basis of caveat, formal notice was not issued to the Respondent. Record of the court below was summoned and thereafter the case was heard on number of occasions. Earlier, the case was heard by Mr. Justice V.K. Mehrotra, but the matter could not be disposed of. Again, the case was listed for admission. Arguments were heard in part on 6th November, 1992 and on 9th November. 1992. Today, the Counsel for the parties have been heard at length and I have perused the record of the court below.

2. The order impugned against is the one by which the Senior Sub-Judge, Shimla allowed an application of the Defendant-Respondent under Order 9, Rule 13 of the Code of Civil Procedure; (hereinafter referred to as the Code) to set aside the ex-parte judgment and decree passed in favour of the Plaintiff-Petitioner on 15th January, 1990.

3. It is necessary to narrate some facts. On 2nd December, 1989, a suit for recovery of possession of a residential set located in Chakkar, Shimla was filed by the Petitioner against the Respondent in the Court of Senior Sub-Judge, Shimla claiming that the same was located outside Municipal limits of Shimla. The Respondent was proceeded against ex-parte on 4th January, 1990. After recording the Petitioners ex parte evidence on 15th January, 1990, the suit was decreed ex-parte on the same day. On the fourth day of the passing of the decree, execution petition was filed and the actual dispossession of the Respondent took place on 25th May, 1990. On 5th July, 1990, an application for setting aside the ex-parte decree was preferred, which was opposed by the Petitioner and the trial Court after recording a finding that the summons had not been duly served upon the Respondent, set aside the ex-parte decree, which is under challenge.

4. The record further reveals that the suit was instituted on 2nd December, 1989, on the same date, office report thereupon, after scrutiny of the plaint, was made and on the same day the court directed the Defendant to be served for 4th January, 1990. Summonses were also prepared on the same day i.e. 2nd December, 1989. The Process Server was handed over the summonses for service on 4th December, 1989, who appears to have tried to effect personal service on the Respondent on 11th December, 1989, but as per his report on the back of summons Ex AW-1/G, the Respondent was not available and was stated to be away. On the same day, the Process Server was asked to make Anr. attempt for service. As per the report, second attempt appears to have been made on 2nd January, 1990. It is reported that the Respondent was not available and on the identification of one Ravinder S. Chandel, summons was offered to the Respondents wife. On her refusal, the Process Server affixed the summons along with copy attached thereto on the residential house and obtained the signatures, in token thereof, of Ravinder S. Chandel.

5. Since nobody appeared on behalf of the Respondent on 4th January, 1990, he was ordered to be proceeded against ex-parte. The Petitioner was called upon to lead his ex-parte evidence, which was recorded on 15th January, 1990 and on the same day, decree was also passed against the Respondent for possession of the suit premises. Simultaneously, a decree for recovery of use and occupation charges w.e.f. 1st December, 1989 till actual delivery of possession at the rate of Rs. 1,000 per month was also passed. On 19th January, 1990, execution petition was presented and without calling for the report of the office, the Court straightaway directed the said execution petition to be registered. A notice was directed to be issued against the judgment-debtor for 2nd March, 1990 on the Petitioner filing process fee. The court also directed that the execution petition be checked and report placed for that date The order-sheet of 2nd March, 1990 states that the Respondent was served with the notice through affixation Warrant of possession was directed to be issued for 17th May, 1990 This warrant could not be executed since the premises were found to be locked. The report on the warrant is dated 17th April, 1990 Fresh warrant of possession was directed to be issued returnable on 27th June, 1990. While directing fresh warrant to be issued, it was also directed that if the premises are found to be locked, all locks in the premises will be broken up and possession of vacant house be given to the decree-holder and in case any articles are found inside the premises, which are attachable, the same be attached for recovery of the decretal amount This warrant was signed by the Presiding Officer on 18th May, 1990 and was handed over to the Bailiff of the court on 19th May, 1990 On 25th May, 1990, the warrant was taken to the spot and was executed in the presence of the same witness, whose signatures appear on the summonses, namely, Ravinder S Chandel. Two locks from the main door and three locks on the inner doors were got broken from a Mistry. A list of house-hold items found in the premises numbering 1 to 70, as per the annexure attached to the warrant was prepared. The articles were kept on the spurdari of the Petitioner. A few items, out of the same numbering 15 of the value of Rs 3.925 were attached for being sold in execution of the decree for recovery of the amount. This is how the Respondent was dispossessed from the premises.

6. In his application seeking to set aside the ex-parte decree, the Respondent alleged that he had beer in occupation of the residential premises located within the urban limits of Shimla on payment of Rs. 500 per month as rent as a tenant under its owner Resham Singh. The residential premises consist of two residential rooms, a drawing room, corridor used as dining space, kitchen, bath, latrine and small store He had been occupying the same since October, 1983 and had been paying rent of the same regularly to its owner Resham Singh through cheque. The rent stood paid till July, 1989. The entire house-hold articles, books and other research material of the Respondent worth more than Rs. 60,000 were also lying therein Due to his research work and other engagements, he had to spend some time at Delhi and other places. He continued staying regularly at Shimla till 31st August, 1989. He was also working as Director, H.P. State Legal Aid Board in which connection, he had been touring the entire State with his tour terminus at Chakkar, Shimla and in order to prepare his paper, to be read and discussed in a Workshop/Seminar, which was to be held at Delhi on 6th and 7th July, 1990, he came to Shimla on 2nd July, 1990, since his books and other material were lying in the premises. In the afternoon of 2nd July, 1990, he went to the premises and found some stranger occupying the same. On enquiry it transpired that the family of one Rajesh Kochhar (Petitioner) was in occupation. He had to spend night in a hotel. On 3rd July, I99u, he came to the District Court, Shimla, where he met one Shri. Ajay Kochhar, Advocate, the brother of the Petitioner from whom he could not get any information and a Counsel was thereafter engaged by him On 5th July, 1990 (4th being holiday), after making out enquiry etc. the application was made seeking to set aside ex-parte decree. It was alleged that the owner Resham Singh never informed him about the transfer of the property. He had never been offered any summonses in the case nor any service was effected upon him. The premises were located within the municipal limits of Shimla. Suit for possession was not maintainable. He could not be evicted except in accordance with the provisions of the Himachal Pradesh Urban Rent Control Act. True facts were concealed from the court and a decree obtained by fraud It was also alleged that Resham Singh owner was possessed of his Delhi address and no effort was ever made to serve him at his Delhi address.

7. In reply to these averments made in the petition, the Petitioner alleged that the Respondent had been duly served. He had knowledge of the pendency of the proceedings. Since the Respondent could not be served, summonses were offered to his wife, who had refused to take delivery and consequently, service was effected by affixation. Even after the possession bad been obteined by the Petitioner, the wife and son of Respondent came to Shimla to make enquiry. It was contended that the application was hopelessly barred by limitation since the ex-parte decree was passed on 15th January, 1990 and the Respondent having been served duly, the application for setting aside the decree ought to have been made within a period of 30 days from the date of passing of the decree and not from the date of knowledge. It was alleged that the premises were located outside the municipal limits.

8. Parties were called upon to adduce evidence. Respondent examined himself as AW-1 and also examined AW-2 Chander Mani, UDC, office of the City Electrical Sub-Division, Boileauganj, Shimla, AW-3 Keshav Chand, Clerk, Water Supply, Municipal Corporation, Shimla and AW-4 Bhopal Singh, Tax Inspector, Municipal Corporation, Shimla. The Petitioner rebutted this evidence by examining himself as RW-1, Roshan Lal, Process Server of the Court of Senior Sub-Judge, Shimla as RW-2, Ravinder S. Chandel as RW-3, Vijay Puri as RW-4 and Kamesh Chander as RW-S.

9. The trial Court on appreciation of evidence and material on record, concluded that Roshan Lal, Process Server did not exercise due care and diligence in finding about the whereabouts of the Respondent before effecting service by affixation. It was also concluded that the Process Server did not satisfy himself, after due enquiry that the lady to whom the summonses were tendered was in fact the wife of the Respondent. Service by affixation made in the facts and circumstances was held to be without complying with the requirements of law. Consequently, the trial Court held that there was no due service upon the Respondent in addition to these findings, the trial Court observed that the Petitioner had obtained ex-parte decree by misrepresenting the facts to the concerned Process Server and had practised fraud on the court inasmuch as it was not shown that the property in dispute was outside the municipal limit of Shimla which fact, according to the trial Court is a controversial issue which requires determination at the trial of main suit after affording due opportunity to the parties to lead evidence. On the basis of these findings, the ex-parte decree was set aside.

10. Learned Counsel for the Petitioner has contended that the findings are vitiated. The same are the result of misreading of evidence and wrong inferences have been drawn The evidence on record is sufficient to warrant a conclusion that the Respondent had been duly served with the summonses, in accordance with the provisions of Order 5, Rule 17 of the Cods and since there was due service of the summonses, the application presented after a period of 30 days of the passing of the decree was beyond limitation. In addition, it has further been urged that the findings that fraud was practised are vitiated since there is no evidence and material in support of such findings.

11. Learned Counsel for the Respondent has by drawing attention to the statements of Process Server and the Defendant as also of the Plaintiff and the reports on the back of the summonses submitted that the service was not in consonance with law and the procedure prescribed thereunder. The manner and circumstances under which the service is said to have been effected itself is sufficient to uphold the findings of the trial Court and no interference in exercise of revisional jurisdiction is called for.

12. Considering the submissions made by the learned Counsel for the parties, the main and primary question is as to whether there has been due and valid service on the Respondent. All other submissions will have to be dealt with thereafter. In case, there is sufficient material on record to sustain the findings of the trial Court that there has been no due and valid service, there will be no need to deal with the remaining submissions.

13. Ex AW-1/G is the photostat certified attested copy of the summons alongwith reports of the Process Server on the reverse thereof. Summons is dated 2nd December. 1989 issued for 4th January, 1990. It was handed over to Roshan Lal Process Server on 4th December. 1989 The first report of the Process Server is dated 11th December, 1989, which reads:

Mauka Par Jakar Shri Babu Ram Chauhan Ka Patta Kiya. Nahin Mila Mauka Par Gawah Se Jabani Maloom Hua Ki Weh Ghar Par Nahin Hai Kahin Gaye Hain Mauka Par Kist Ne Tasdik Nahin Kiya. Ateh Sewa Main Report Pesh Hai.

14. The report is self contradictory. Firstly, it shows that an enquiry was made from the witness orally, who stated that the Respondent is not in his house. Neither the name of the person from whom the enquiry was made is stated nor signatures of any person on this report were obtained. On the other hand, report also records that nobody testified on the spot. Just below the report is yet Anr. endorsement dated 11th December, 1989, which appears to have been made by some Court official. The same is try again.

15. Just below this report, there is Anr. report dated 2nd January, 1990 It appears to have been attested by the same court official on 3rd January, 1990, who has written the endorsement try again on 11th December, 1989. There appears to be sufficient space available on one side below the report where on 3rd January, 1990, the court official wrote the word attested. Signatures of witness Ravinder S. Chandel, in token of having affixed the summons on 2nd January, 1990, instead of having been obtained below the report in the space, were obtained on the top of the report.

16. The gist of the report dated 2nd January, 1990 is that, after having paid numerous visits and having made enquiry, Babu Ram Chauhan was not available. From witness Ravinder S. Chandel, it was learnt that his wife was sitting outside, who was asked to take delivery of summons. She was not prepared to accept the same and stated that summons be offered to whom the same is addressed. A copy of the summons was thereafter affixed on the house and signatures of the witness obtained It is worthwhile to notice that this report dated 2nd January, 1990 is not at all verified on affidavit of the Process Server.

17. On the face of it, the two reports are not in consonance with the provisions of law Rule 12 of Order 5 of the Code, provides that wherever it is practicable, service shall be made on the Defendant in person. In case he has an agent empowered to accept service, service effected on the agent shall be deemed to be sufficient. Rule 15 of Order 5 of the Code enables the serving officer to serve the summonses on any adult member, whether male or female, who is residing with the Defendant, in case the Defendant is found absent from his residence at the time when the service of summons is sought to be effected and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service, From the first report, it appears that the serving officer wanted to serve the Respondent personally, but the Respondent was not available at the given address. Whether he bad gone out or whether he was not likely to come within a reasonable time is not recorded by the Process Server in the said report. As submitted by the learned Counsel for the Petitioner, service was effected by the serving officer, in accordance with the procedure enumerated in Order 5, Rule 17 of the Code, which reads as under:

17. Procedure when Defendant refuses to accept service, or cannot be found. Where the Defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the Defendant who is absent from residence at the time when service is sought to be effected on him at his residence and there is no likelihood is being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the Defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

18. There are a few requisites which must be borne in mind by a serving officer before the mode of service, provided under Rule 17 of Order 5 is resorted to. The first requisite is that the serving officer, after using all due and reasonable diligence has not been able to find the Defendant. This requirement is further elaborated and it requires that such of the Defendant, who is absent from the house at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service on his behalf. It is only in such of the cases when these requirements are fulfilled that the serving officer is enabled and authorised to affix a copy of the summons on the outer door or some other conspicuous part of the house in which the Defendant ordinarily resides or carries on business or personally works for gain. The report must state that the serving officer has so affixed the copy, the circumstances under which he did so and the name and address of the person by whom the house was identified and in whose presence the copy was affixed. In the instant case, according to the report, the Respondent was not found on the spot. The serving officer came to know from the witness Ravinder S. Chandel that some lady was sitting outside the house, who according to the witness, was the wife of the Defendant. This lady was asked to accept the summons She did not accept summons and stated that it should be offered to the same person to whom it is addressed. Summons thereafter was affixed on the house. It is thus clear that the important requirements are absolutely lacking. The report nowhere states that who was the person, who identified the house Though the name of the witness Ravinder S. Chandel is mentioned but his address is not mentioned from where his identity may be established or verified. The report also nowhere states that what diligent efforts were made by the serving officer to know the whereabouts of the Respondent. There is also nothing shown in the report that there was no likelihood of the Respondent being found at his residence within a reasonable time. The report also nowhere records that no agent empowered to accept the service was available.

19. Rule 19 of Order 5 further requires that where summons is returned under Rule 17, the court shall, if the return under that rule has not been verified by the affidavit of the serving officer and in case it has been so verified, it may, examine the serving officer on oath or cause him to be so examined by Anr. court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit, and shall thereafter declare that the summons has been duly served.

20. As noticed above, the report of the serving officer was not verified by an affidavit. In such a case, it was mandatory for the court to have examined the serving officer on oath himself or ought to have got him so examined touching his proceedings Only thereafter the court ought to have recorded a declaration that the summons had been duly served. From the proceedings recorded on 4th January, 1990, it can be seen that there is no such declaration recorded by the court in its order. Neither the court recorded that summons had been duly served, nor any effort was made to record the statement of the Process Server.

21. Having noticed the aforementioned provisions and circumstances, the service would be a valid on the Defendant, as per the requirement of Order 5, Rule 17 of the Code only if the report is in consonance with the requirement of law and If it is verified on affidavit, the court must examine the serving officer on oath and then declare the summons having been duly served.

22. The trial Court on the basis of evidence also held that the said witness Ravinder S. Chandel was highly interested since he was the same gentleman who was also present at the time of actual delivery of possession. From perusal of the evidence on record, I find that the circumstances, in which, according to the Process Server, this witness met him have not been duly supported by the witness. There is material contradiction in their statements, which have been noticed by the trial Court. In these circumstances, there is no manner of doubt that the findings recorded by the court below that there has been no due and valid service on the Defendant, are not liable to be interfered with in exercise of revisional jurisdiction.

23. The utmost haste in which the case proceeded leaves an impression that the Petitioner wanted to get rid of the Respondent from the premises. Some circumstances which deserve notice are that the brother of the Petitioner is a practising Advocate at Shimla. The Respondent was a tenant under Resham Singh the owner of the premises, from whom, as stated by the learned Counsel for the Petitioner, the same were purchased by the Plaintiff-Petitioner on 17th October, 1989. The suit was instituted on 2nd December, 1989. On the same day, the office report was made and summons directed to be issued. Summonses were also issued on the same date and handed over for service on 4th December, 1989. On the very first date i.e. 4th January, 1990, the Defendant was proceeded against ex -parte. On 15th January. 1990, ex-parte evidence was recorded and suit decreed. Four days thereafter, the execution petition was filed. Without obtaining anys office report thereupon and without waiting for the expiry of period of limitation for filing an appeal, notice was also directed to be issued to the Defendant to 2nd March, 1990. He was also not served personally. Service in this case was also effected by affixation. On 2nd March, 1990, warrant of possession was ordered to be issued which could not be executed since the premises were found locked. On 17th May, 1990, fresh warrant was directed to be issued with directions to break open the locks and also to attach the moveable property for the recovery of the amount of damages On 25th May, 1990, as many as 5 locks were broken and possession delivered to the Plaintiff-Petitioner. The list of articles appended to the warrant of delivery of possession would show that the Defendant had kept all the house-hold articles in the premises. Even the possession of telephone instrument was handed over, to the Petitioner. On perusal of this list, it will also be noticed that numerous books and files were also found and the same were also handed over to the Petitioner. The reading of the entire file and the manner in which the case proceeded against the Respondent and the Petitioner obtained ex parte decree and got the Respondent dis-possessed from the premises makes a very sorry state of affairs.

24. In view of what has been noticed above. I do not find it to be a fit case to exercise the powers of revisional jurisdiction. Other points as urged in view of the upholding of the findings of the trial court that there has been no valid and effective service need not be considered. Consequently, the revision petition is dismissed with costs, quantified at Rs. 1,000.

25. The order of stay granted on 26th February, 1992 is vacated. While parting, it will not be unreasonable to direct that the trial Court shall take up the application, which has been moved by the Respondent under Section 144 of the Code for restitution expeditiously and take a final decision thereon within two months from today.

The parties are directed to appear before the Senior Sub-Judge, Shimla on 30th December, 1992. Records be sent down forthwith.

Advocates List

For Petitioner : G.C. Gupta, Adv.For Respondent : S.S. Kanwar, Adv.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE JUSTICE DEVINDER GUPTA, J.

Eq Citation