INDUSTRIAL MEDICAL ENGINEERS Vs. ANIL NIJHAWAN

JUDGEMENT

(1.) In the present case the Plaintiff has filed a Suit for the recovery of money under Order XXXVII of the CPC. On 16.10.2000 the learned Trial Court had arrived at the conclusion that the Petitioners, namely, M/s. Industrial Medical Engineers, Shri S.P. Bhargava and Shri Vikas Bhargava had been duly served. It was observed that Defendant Nos. 1 and 2 had been served by means of Registered Post Acknowledgement Due on 22.9.2000, while the notices issued to Defendant No. 3 had been returned back with the Report of the Postal Authorities that it had been "Refused". Defendant Nos. 4 and 5 have been deleted from the array of the parties. However, since Defendant Nos. 1 to 3 had not 'entered appearance', a Decree was passed against these persons. At the time of hearing, learned Counsel for the Respondent/Plaintiff had conceded that since Shri Vikas Bhargava was/is not a partner in the firm, the Decree against this person would not be proper. He, therefore, has prayed that Shri Vikas Bhargava be struck off from the array of parties in these proceedings, and be deemed to have been struck off from the array of parties in the Suit also.

(2.) It appears that so far as the partnership firm, M/s. Industrial Medical Engineers, is concerned, (Defendant No. 1 in the Suit), the Report of the Process Server on his attempt to serve summons under Order XXXVII is to the effect that since the proprietor/partner was not available, service could not be effected. However, as far as the service by Registered Post Acknowledgement Due is concerned the AD Card has been returned with an initial/signature purporting to be on behalf of the firm. The Process Server has reported that Shri S.P. Bhargava was not available; but by the mode of service by Registered AD, the Report is that it had been 'Refused'.

(3.) It cannot be gainsaid that the Court should be cautious and slow to proceed to adjudicate upon a lis in the absence of a party thereto. A decision taken without affording sufficient opportunity to the affected parry of being heard or entering his defence, is anathema to law. It is equally essential that a devious Defendant who is deliberately evading service should not be permitted to delay justice by adopting dilatory designs; this factor is of added significance when a summary suit is being tried. Both these considerations have to be neatly and carefully balanced against each other. If there is scope for doubt, the benefit should be given to the party sought to be served.