VIRENDER SINGH BAHL Vs. Y K KAPOOR

JUDGEMENT

(1.) Petitioner/plaintiff filed Suit No. 3202/91 in this Court. This was suit for specific performance of agreement dated 10.10.1988. Respondent/defendant was issued notice which was duly served and he appeared in the suit. Interim order in favour of the petitioner/plaintiff was passed restraining the respondent/defendant from transferring, alienating or disposing of the suit property, in any manner whatsoever. Pecuniary jurisdiction of the District Court was raised from Rs. 1.00 lac to Rs. 5.00 lacs and all the suits which were pending in this Court upto the value of Rs. 5.00 lacs were transferred to District Court. Accordingly, this suit was also transferred to District Court and it was marked to Sh.I.S.Mehta, learned Additional District Judge. It was listed before him on 10.5.1994. However as he was on leave on that date, it was adjourned to 18.5.1994. On 18.5.1994, Court notices were issued to both the parties for 8.11.1994. On 8.11.1994 also nobody appeared. After recording that plaintiff had been served by affixation of summons and as nobody appeared on behalf of the plaintiff, suit was dismissed in default. Thereafter the petitioner/plaintiff filed an application under Order 9 rule 4 readwith Section 151 Civil Procedure Code for restoration of the suit in which it was, inter alia, submitted that he had not received any notice from the transferee Court, and therefore, he had not appeared on 8.11.1994. He further stated in the application that his counsel was informed by the respondent/defendant's counsel that the case was listed oh 8.3.1995 and accordingly when he appeared on 8.3.1995, he did not find the case in the cause list and on inquiry from Ahalmad, he was told that the suit has been dismissed for non-appearance on 8.11.1994. After ascertaining this position, he filed application under Order 9 Rule 4 Civil Procedure Code for restoration of the suit submitting that as no Court notice was served upon him, there was sufficient cause for non-appearance. It was also submitted that the Court had not ordered service by affixation of. summons, and therefore, process server could not effect the service allegedly by affixation of summons and on such a report. Court should not have dismissed the case for non-appearance. Reply was filed to the said application by the respondent/defendant herein and after hearing both the parties, by impugned order dated 29.7.1995, the learned ADJ dismissed the application on the ground that the same was time barred as suit was dismissed on 8.11.1994 and the application for restoration was moved only on 23.3.1995. Against the aforesaid order, present revision petition was preferred which was admitted on 4.7.1996 and in CM 3024/95 filed by the petitioner, this Court passed the order restraining the respondent/defendant from transferring, eliminating or disposing of the suit property in any manner whatsoever during the pendency of the revision petition.

(2.) After going through the petition, contents of application under Order 9 Rule 4 Civil Procedure Code filed by the petitioner before the Trial Court as well as its reply filed by the respondent/defendant herein, I am of the considered view that impugned order warrants to be set aside. It cannot be denied that after the suit was transferred from this Court to the District Court, fresh notice of the suit was to be served upon both the parties. In fact by order dated 18.5.1994. Court had directed that notice be issued to both the parties. Orders dated 18.5.1994 & 8.11.1994 being relevant are quoted below:

(3.) Order V of Civil Procedure Code deals with service of summons. As per Order V Rule 12, wherever it is practicable, service has to 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. The same can be applied when Court notice is served on both the parties including the plaintiff. As per aforesaid provision, normally service has to be effected on the party in person. In terms of Order V Rule 16 Civil Procedure Code on tendering such summons, the process server is required to obtain the signature of the defendant or his agent etc. (or the plaintiff as the case may be) to whom the summons are so delivered or tendered. It is only when the person to whom the summons are tendered, refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant (or the plaintiff as the case may be), the serving officer shall affix the 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 and 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. There is nothing on record to show that the plaintiff was tendered the summons personally or that he refused to accept the same. The service by affixation could be done Only if the plaintiff had refused to give the acknowledgment when tendered with the summons. Rather it has been categorically stated by the petitioner in application under Order 9 Rule 4 Civil Procedure Code that petitioner had not been served with the summons, and therefore, he was not aware of the date of hearing i.e. 8.11.1994 and for want of service he could not appear oh the said date. When the plaintiff has not been served with the summons in accordance with law and the alleged service is no service in the eyes of law, the obvious conclusion is that plaintiff was not at all served with the summons. In the absence of'service, the Trial Court could not have dismissed the suit in default. Therefore, there was sufficient cause of non-appearance by the plaintiff on 8.11.1994 and the proper course which the learned Trial Court should have adopted was to issue fresh summons. It may be stated at the cost of repetition that even the defendant was not present on 8.11.1994. Learned Trial Court, in the impugned order, has not dealt with this aspect at all i.e. whether there was any service and/or service as per law effected upon the plaintiff or not. In fact, as mentioned above, the application of the plaintiff is dismissed merely on the ground that it is barred by time. However dismissing the application on this ground by the Trial Court was not proper when it was a case of "no service" and non-appearance of the plaintiff on 8.11.1994 because of this reason. It is now well settled that any order passed against a party, which has not been served with the notice, is nullity in the eyes of law. Supreme Court observed so in the case of Grindlays Bank v. C.G.I.T. & Ors. 1981 LIC 155 in the following words.