Civil Procedure Code, 1908 – Order 5 Rule 17 & 18 – Endorsement of the process server / postman – If no evidence is given with regard to service of summons, the fact that the postman or the process server reported refusal/non acceptance of the service would have to be accepted as correct.
Civil Procedure Code, 1908 –Order 9 Rule 6 – Procedure when only plaintiff appears – When summons are duly served but the defendant chooses not to appear, the Court may make an order that the suit be heard ex parte. In case it is not proved that the summons are duly served, the Court is under an obligation to direct a second summons to be issued and served on the defendant. In the event of the defendant not having sufficient time to appear, the Court can postpone the hearing of the suit to a future date whereafter fresh notice of such date is required to be given to the defendant.
Civil Procedure Code, 1908 – Order 9 Rule 13 – Setting aside decree ex parte against defendant – An ex parte decree cannot be set aside if the Court is convinced that defendant had the knowledge of the proceedings and he could have appeared and answered to the plaintiffs claim.
Civil Procedure Code, 1908 – Order 9 Rule 13 – Setting aside decree ex parte against defendant – An ex-parte decree shall not be set aside merely on the ground of irregularity in the service of summons if the Court was satisfied that the defendant was aware of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CORAM: HON’BLE MR JUSTICE BADAR DURREZ AHMED & HON’BLE MR JUSTICE ASHUTOSH KUMAR
FAO (OS) 108/2016
SWEETY GUPTA ….. Appellant
NEETY GUPTA & ORS ….. Respondents
Advocates who appeared in this case: For the Appellant : Mr Abhijat with Mr Rishab Bansal and Mr Anuj Chaturvedi. For Respondent No.1 : Mr Praveen Kumar.
ASHUTOSH KUMAR, J
1. Sweety Gupta, appellant/defendant No.4 has put up a challenge to the order dated 28.01.2016 passed in IA No.19352/2011 in CS(OS) No.2209/2008 whereby the application preferred by her for setting aside the ex-parte preliminary decree dated 27.09.2011 passed by a learned single Judge of this Court directing that the plaintiff/respondent No.1 and defendant Nos.1 to 4, all of whom are own sisters, would be entitled to 1/5th share in the suit property bearing Nos.B-7, 80/2, Safdarjung Enclave, New Delhi-110029 and B-9, Rohit Kunj, Pitampura (Rohtas Cooperative House Building Society, Delhi), has been rejected.
2. The singular issue which arises for determination in the present case is whether the appellant who was defendant No.4 in the main suit had been served with the summons of the suit and whether ex-parte proceeding against her is justified.
3. Before we proceed to examine the facts of this case, we deem it expedient to notice the relevant provisions of law regarding appearance of parties in a suit and consequences of non appearance as well as rescinding of an ex-parte judgment along with the provisions of the Code of Civil Procedure which deal with the service of summons.
4. Rules 17 & 18 of Order V of CPC, 1908 reads as follows:-
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 acknowledgement, 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 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 or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, 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.”
5. These two rules, referred to above, provide for contingencies in which a defendant in a suit refuses to accept service or cannot be found as well as the responsibility of the serving officer to endorse or cause to be endorsed a return stating the time and the manner in which the summons were attempted to be served or served.
6. Order IX of the Code of Civil Procedure, 1908 primarily deals with the requirement of parties to a suit to appear and provides for the manner of disposal of a suit in the event of either of the parties not appearing before the Court or when neither of the parties would choose to appear before the Court.
7. Rule 6 of Order IX reads thus:-
6. Procedure when only plaintiff appears
(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then–
[(a)] When summons duly served–if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte.]
(b) When summons not duly served–if it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served but not in due time–if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiffs’ default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.”
8. The provisions contained in Rule 6 (Supra) contemplates three circumstances when on a date fixed for hearing, the plaintiff appears and the defendant does not appear. In that event three alternatives are provided for, to be resorted to by the Court. The three situations/circumstances are (i) when summons duly served; (ii) when summons not duly served; and (iii) when summons served but not in due time. In the present case we are concerned with situation (ii) i.e when the appellant/defendant No.4 asserts that the summons have not been duly served.
9. It is to be noted that when summons are duly served but the defendant chooses not to appear, the Court may make an order that the suit be heard ex parte. In case it is not proved that the summons are duly served, the Court is under an obligation to direct a second summons to be issued and served on the defendant. In the event of the defendant not having sufficient time to appear, the Court can postpone the hearing of the suit to a future date whereafter fresh notice of such date is required to be given to the defendant.
10. The last corrective provision in the Code of Civil Procedure, 1908 is Rule 13 of Order IX which provides the circumstances under which an ex parte judgment and decree could be set aside/rescinded. Rule 13 of Order IX reads as hereunder:-