DHARAMPAL SINGH Vs. AMAR SINGH AND OTHERS

JUDGEMENT

(1.) The petition is against the order dismissing an appeal filed for setting aside the ex parte decree in a suit filed by the brother of the petitioner setting up a Will said to have been executed by their father. The petitioner had been set ex parte after a paper publication was made through substituted service. The ex parte decree was passed on 19.08.2000. The application for setting aside was filed on 31.08.2001 contending that the plaintiffs/respondents had deliberately given a wrong address in the village when he was actually residing at Delhi and which fact was known to his brother/plaintiff. To explain the delay of filing the petition after a year after the decree was passed, the petitioner had stated that he knew about the ex parte decree only when he went to the village to collect the details of jamabandi from the Patwari in July, 2001 and as soon as he got details, he met with the counsel for filing the petition. This was by way of explanation that he knew about the ex parte decree itself locally from the Patwari only before 13 days from the date when he actually filed the petition for setting aside the ex parte decree.

(2.) The petitioner's contention was refuted by the plaintiff to say that the petitioner had actually refused to receive the summons which were served on him at the village. The plaintiff brought two witnesses RW2 and RW3 as persons who had accompanied the bailiff for service and they were personal witnesses to the fact that the petitioner had refused to receive the summons. The counsel for the petitioner points out going through the evidence of the witnesses in cross-examination that both of them admitted that the petitioner retired from the government service in the year 1977 and after his retirement, he was living at Delhi. The plaintiff himself in his cross examination admitted that the petitioner died at Delhi in 2003 but he stood by his assertion that at the relevant time of service of summons, he was still residing in the village. The counsel for the respondents vehemently contends that there are very serious contradictions in the contentions raised by the petitioner in his petition and the evidence given by his son after his death in Court. The learned counsel would point out to me the fact of statement in the petition that the petitioner knew about the ex parte decree from Patwari on 25th July, 2001 but his son has given evidence to the effect that he met the Patwari on 01.08.2001 and that he got the copy of the ex parte decree on 03.08.2001. This, according to him, discredited the quality of evidence given on the side of the petitioner. He would also contend that even the counsel who was instrumental in securing the copy of the ex parte decree was not examined to explain that the petitioner came to know about the ex parte decree only in August, 2001. This statement as though he knew about the decree only in August, 2001 was deliberate with a view to get over the law of limitation.

(3.) I am not impressed with the contention raised by the respondent or the reasoning adopted by the Courts below. If, as a matter of fact, it is an admitted position that the petitioner was not served and that a substituted service had been ordered, there is no presumption that a person has knowledge of such a publication. If there was a Court endorsement that a party had refused to receive the summon even then, there is no presumption of the correctness of the refusal unless the bailiff himself had been examined in Court to speak about the fact of refusal by the party. Order 5 of the Civil Procedure Code which sets out the procedure for issuance and service of summons, requires the summons to be served at the place where a person is normally resident. Rule 6 enjoins that the Court shall fix a day to allow the defendant sufficient time to enable him to appear and answer on such day. Rule 17 sets out a procedure when defendant refuses to accept the service or when he cannot be found. The said rule mandates that the serving officer shall affix copy of the summons on the outside space or conspicuous part of the house in which the defendant ordinarily resides or carries on business and the summons shall be returned to the Court from which it was issued with the report endorsed thereon stating that he so affixed the copy and the circumstances under which he did so. Rule 18 requires the bailiff to set out the endorsement, the time and manner in which the summons were served. Rule 19 states that when a summon is returned under Rule 17 (when the summons is refused), the Court shall, if the return under which the rule has not been verified by the affidavit of the serving officer or if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit. Rule 19, therefore, does not make an endorsement as final and mandates the Court to require the examination of the serving officer. In this case, the serving officer himself does not seem to have been examined. The endorsement is, therefore, not sufficient to make an inference that there had been an impact of refusal of receipt of summons. All this is only to show that there has been a material irregularity in the manner of appreciation of the relevant provisions of law relating to service and the Court when it ordered substituted service did no more than take one step of what would constitute a terminus a quo of the service before the Court effectively passed an order setting a defendant ex parte and then pass a decree. If there was a failure of process of service in the manner that the law mandated, and when a petition was filed for an adjudication on merit, the Court was bound to give an opportunity to the parties. It is no argument to pick holes on minor contradictions of inability to recall an incident relating to particular date of when the Patwari informed about the decree and when he met with the counsel to apply for the certified copy of the order. They are relatively trivial, which do not mean that the most vital issue relating to lack of proper service which the law requires before an ex parte decree could be passed.