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CASE NO.:

Appeal (civil) 5111 of 2000

PETITIONER:

SUSHIL KUMAR SABHARWAL

RESPONDENT:

GURPREET SINGH AND ORS.

DATE OF JUDGMENT: 23/04/2002

BENCH:

R.C. LAHOTI & B.N. AGRAWAL

JUDGMENT:

JUDGMENT

2002 (3) SCR 352

The following Order of the Court was delivered :

This is a landlord-tenant litigation. The tenant is aggrieved by an ex-

parte decree dated 9.10.1993 for recovery of arrears of rent and eviction

from the suit premises bearing plot No. 9, Chowk Shakti Nagar, Amritsar

where the tenant carries on his business of selling shoes. An application

under Order 9, Rule 13 of the C.P.C. seeking setting aside of the ex-parte

decree was filed which was opposed, enquired into and rejected by the Trial

Court. The Civil Revision preferred by the tenant met with the same fate.

The tenant has filed this appeal by Special Leave.

A perusal of the record of proceedings shows that the process server was

entrusted with summons for service on the defendant-tenant. The date of

hearing appointed was 23.2.1993. According to the process server, Narinder

Jeet Singh, he went to the shop of the tenant-appellant on 22.2.1993 and

tendered to him the summons accompanied by a copy of the plaint. The tenant

refused to accept the summons. Then, he returned the summons alongwith an

endorsement of refusal on the back of summons to the Court on 23.2.1993. On

23.2.1993, the Court recorded default in appearance of the defendant-tenant

and proceeded ex-parte resulting into the ex-parte decree dated 9.10.1993.

The singular issue which arises for determination in the case is whether

the defendant-tenant can be said to have been properly served in the manner

contemplated by the Code of Civil Procedure?

Before we proceed to notice the relevant provisions of law, it will be

relevant to state what was endorsed by the process server on the back of

the summons and what was deposed to by him in the court when he was

examined in the court as a witness for the landlord-respondent.

The endorsement made by the process server reads as under:

"REPORT OF PROCESS SERVER

Sir,

I visited Sushil Kumar Sabharwal C/o Sabharwal Shoes, House 9. He met me on

the spot present. But he refused to accept the summons, Copy of the plaint

alongwith summons is returned to the Court.

Report submitted accordingly.

Sd/-

Narinder Jeet Singh Dated : 22.2.93

Translation from Punjabi to English.

Attested to the true.

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(Rajesh Bhandari)

Note : No witness available on the spot.

Refusal - 23.2.1993"

The facts deposed to by Narinder jeet Singh, Process Server in the court

show his having tendered the summons alongwith the copy of the plaint to

the defendant and thereupon, the defendant's refusal to accept the same. He

affirmed the endorsement made by him on the back of the summons. However,

he proceeded to state "if the person refuses to accept the same, a copy of

the summons and copy of the application be pasted on the wall of the said

shop". His deposition runs counter to his own endorsement made on the back

of the summons, according to which, on refusal by the defendant to accept

the summons "copy of the plaint alongwith summons" was returned to the

Court.

Rules 17 and 18 of Order 5, C.P.C. which lay down the procedure of service

when the defendant refuses to accept service and the endorsement to be made

by the serving officer, read thus:

"17. Procedure when defendant refuses to accept service, or cannot be

bound.-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 his residence 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 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 of some other conspicuous part of the house in which the

defendant ordinarily reside 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 or 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. Endorsement of time and manner of service.-The serving officer shall,

in all cases in which the summons has been served under Rule 16, endorse or

annex, or cause to be endorsed or annexed, on or to the original summons, a

return stating the time when and the manner in which the summons was

served, and the name and address of the person (if any) identifying the

person served and witnessing the delivery or tender of the summons.

We find several infirmities and lapses on the part of the process server.

Firstly, on the alleged refusal by the defendant either he did not affix a

copy of the summons and the plaint on the wall of the shop or if he claims

to have done so, then the endorsement made by him on the back of the

summons does not support him, rather contradicts him. Secondly, the

tendering of the summons, its refusal and affixation of the summons and

copy of the plaint on the wall should have been witnessed by persons who

identified the defendant and his shop and witnessed such procedure. The

endorsement shows that there were no witnesses available on the spot. The

correctness of such endorsement is difficult to believe even prima facie.

The tenant runs a shoe shop in the suit premises. Apparently, the shop will

be situated in a locality where there are other shops and houses. One can

understand refusal by unwilling persons requested by the process wherever

to witness the proceedings and be a party to the procedure of the service

of summons but to say that there were no witnesses available on the spot is

a statement which can be accepted only with a pinch of salt. Incidently, we

may state that though the date of appearance was 23rd February, 1993 the

summons is said to have been tendered on 22nd February, 1993, i.e., just a

day before the date of hearing.

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The appellant has himself appeared in the witness box and deposed on oath

that no summons was tendered to him by any process server of the Court. It

is a case of oath against oath. In view of the facts which we have noticed

here-in-above clearly the oath of the appellant was more weighty than the

oath of the process server. In the ordinary course of events, the court of

facts should have discarded the statement of the process server and

believed the statement of the appellant.

The learned counsel for the landlord-respondent submitted that there is an

interpleader suit filed by the appellant because there was a dispute

between the heirs of the original landlord who unfortunately died and his

widow and the grandsons (who are the respondents herein), each of the two

was claiming itself to be the landlord and entitled to recover rent setting

up a will in its favour. The appellant has admitted in the plaint therein

that he was aware of the pendency of the suit filed by the respondent in

the court of the Rent Controller, Amritsar. In fact, this admission of the

appellant has weighed heavily with the High Court which has opined that

even if the summons was not duly served, the appellant was aware of the

pendency of the suit and, therefore, the application under Order 9, Rule 13

C.P.C. did not have any merit.

The High Court has over looked the second proviso to Rule 13 of Order 9

C.P.C., added by the 1976 Amendment which provides that no court shall set

aside a decree passed ex-parte merely on the ground that there has been an

irregularity in the service of summons if it is satisfied that the

defendant had notice of the date of hearing and had sufficient time to

appear and answer the plaintiff's claim. It is the knowledge of the 'date

of hearing' and not the knowledge of 'pendency of suit' which is relevant

for the purpose of the proviso above said. Then the present one is not a

case of mere irregularity in service of summons; on the facts is a case of

non-service of summons. The appellant has appeared in the witness box and

we have carefully perused his statement. There is no cross-examination

directed towards discrediting the testimony on oath of the appellant, that

is, to draw an inference that the appellant had in any manner a notice of

the date of hearing and had sufficient time to appear and answer the

plaintiff's claim which he did not avail and utilise.

The provision contained in Order 9 Rule 6 of the C.P.C. is pertinent. It

contemplates three situations when on a date fixed for hearing the

plaintiff appears and the defendant does not appear and three courses to be

followed by the Court depending on the given situation. The three

situations are: (i) when summons duly served, (ii) when summons not duly

served, and (iii) when summons served but not in due time. In the first

situation, which is relevant here, when it is proved that the summons was

duly served, the Court may make an order that the suit be heard ex-parte.

The provision casts an obligations on the Court and simultaneously invokes

a call to the conscience of the Court to feel satisfied in the sense of

being 'proved' that the summons was duly served when and when alone, the

Court is conferred with a discretion to make an order that the suit be

heard ex-parte. The date appointed for hearing in the suit for which the

defendant is summoned to appear is a significant date of hearing requiring

a conscious application of mind on the part of the Court to satisfy itself

on the service of summons. Any default or casual approach on the part of

the Court may result in depriving a person of his valuable right to

participate in the hearing and may result in a defendant suffering an ex-

parte decree or proceedings in the suit wherein he was deprived of hearing

for no fault of his. If only the Trial Court would have been conscious of

its obligation cast on it by Order 9 Rule 6 of the C.P.C., the case would

not have proceeded ex-parte against the defendant-appellant and a wasteful

period of over eight years would not have been added to the life of this

litigation.

Be that as it may, we are satisfied that the summons was not served on the

defendant-appellant. He did not have an opportunity of appearing in the

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Trial Court and contesting the suit on merits. The Trial Court and the High

Court have committed a serious error of law resulting in failure of justice

by refusing to set aside the ex-parte decree.

The appeal is allowed. The orders of the Trial Court and the High Court are

set aside. The application under Order 9, Rule 13 C.P.C. filed by the

defendant-appellant is allowed. The ex-parte decree dated 9.10.1993 is set

aside. The proceedings of the Trial Court shall stand relegated back to

23.2.1993. The parties through their respective learned counsel are

directed to appear before the Trial Court on 5.8.2002, on which date, the

Trial Court shall appoint a date of hearing and proceed ahead with the

hearing of the suit in accordance with law. No costs. Let the record of the

Trial Court be transmitted back at the earliest accompanied by a copy of

this Order.