GA No.1941 of 2015 APOT No.244 of 2015 CS No.323 of 2003 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE SURINDER KUMAR SINGH Versus PARIJAT VYAPAR PRIVATE LIMITED BEFORE: The Hon'ble CHIEF JUSTICE MRS.MANJULA CHELLUR AND The Hon'ble JUSTICE JOYMALYA BAGCHI Date: 24th August, 2015 Appearance Mr.Suman Dutta, Adv.with Mr.Aniruddha Mitra, Adv.Mr.Devajyoti Baidya, Adv.Mr.Surajit Sen, Adv.Ms.N.Dutta, Adv.Mr.Malay Ghosh, Sr.Adv.with Mr.Anuj Singh, Adv.Mr.Soumik Chowdhury, Adv.The Court: This appeal is directed against the order dated 4.5.2015 passed by the learned Single Judge dismissing the application for recalling of the ex parte decree passed in the suit.
The claim of the appellant is to the fact that initially service was sought to be effected upon him by the Deputy Sheriff through registered post, which had returned with the endorsement “Incomplete address” in 2005.
Thereafter, no steps were taken to effect service and in 2008, an application was made before the learned Master for substituted service, both at Ranchi and Kolkata.
Learned Master had by order dated 1.11.2008 directed service by way of publication in Kolkata, which according to the appellant, was contrary to the provisions of law.
The appellant also argued that the learned Master did not have the requisite jurisdiction to entertain the application for substituted service.
Learned Single Judge having rejected the aforesaid contentions, the appellant is before us.
Mr.Dutta, learned Counsel appearing for the appellant submitted that the endorsement on the postal cover had returned with the mark “Incomplete address”.
Hence, there was no service effected upon the appellant and the suit in fact was liable to be dismissed under Order 9 Rule 5.
In order to avoid such an eventuality, the respondent/defendant had resorted to substituted service which was impermissible in law.
Publication in Kolkata alone was illegal as his client was never residing at Kolkata at all.
He also submitted that the former advocate on record of the appellant was negligent and did not take proper steps in the matter resulting in passing of the ex parte decree.
He accordingly prayed for setting aside of the aforesaid order.
Mr.Ghosh, learned Senior Advocate appearing for the respondent/defendant submitted that the address given in the plaint was in fact admitted by the appellant in his pleadings in the interlocutory application.
He submitted that even in the present appeal proceeding, the said address is claimed to be the place where the appellant is working for gain.
He further submitted that the appellant had in fact given three addresses in his affidavit in opposition filed in the interlocutory proceeding before this Court which included the address in the plaint.
In view of the aforesaid facts, Mr.Ghosh strenuously argued that despatch of the writ of summons at the address stated in the plaint and admitted by the appellant in his affidavit as correct in the interlocutory proceeding was lawful.
The endorsement on the postal cover was incorrect as the writ was despatched through registered post at the address stated in the plaint.
Such service being sought to be avoided, steps for substituted service upon the appellant was restored to and the same cannot be said to be illegal.
The learned Master rightly directed publication in Kolkata as it appears from the pleadings in the interlocutory proceedings that he last resided at Kolkata.
Plea of remissness of the former advocate on record of the appellant is an after thought and ought not to be given any credence at all.
We have considered the rival submissions of the parties.
We have also gone through the pleadings of the parties in the interlocutory proceeding also.
In the affidavit in opposition filed in the interlocutory proceeding, it is admitted by the appellant that he is residing at the address stated in the plaint.
That apart, he had also stated that he was subsequently residing at Kolkata.
In view of the aforesaid factual matrix, we find it hard to believe that the address given in the plaint was incomplete or that service could not be effected on such score.
On the other hand, the appellant having admitted the said address in the plaint and the despatch of the writ of summons by registered post to the said address gives rise to an irresistible interference that the writ was despatched to the correct address and such service was sought to be avoided by putting a wrong endorsement on the postal cover namely, “Incomplete address”.
Such endorsement is patently erroneous in view of the admission as to the correctness of the said address by the appellant himself in the interlocutory proceeding and we are therefore not inclined to rely on the said endorsement.
We are therefore in agreement with the learned Single Judge that in the aforesaid factual matrix the prayer for substituted service cannot be faulted.
It is true that in the application for substituted service the respondent, in fact, had prayed for publication both at Ranchi and Kolkata.
It has been strenuously argued that the learned Master erred in law in directing publication at Kolkata only.
We do not think so.
It appears from the pleadings that the appellant was last residing at Kolkata and accordingly the direction of the learned Master to make publication at the place where the defendant was last residing or known is in consonance with Order 5 Rule 20 of the Code of Civil Procedure is wholly justified.
A desperate plea has been taken by the appellant that the address of the appellant in Kolkata where he claimed to be last residing in the interlocutory proceedings was, in fact, not his own but of a relation of his former Advocate on record.
There is nothing on record to justify such contention apart but from a bald assertion to that effect.
We are unimpressed by such improbable excuse belatedly set up by the appellant which is bereft of any factual foundation whatsoever.
Apart from the plea of incomplete service, it has also been pleaded in the application for recalling the ex parte order that the former Advocate-onrecord of the appellant did not take proper steps to represent him in the matter.
We are however not convinced on that score also inasmuch as we find such plea is an after thought and not a genuine one as no step appears to be taken against the former Advocate-on-record for such alleged act of remissness.
Hence we are unable to accept the contentions of the appellant that he had not been served with the writ of summons in accordance with the procedure contemplated in law or did not have adequate opportunity to represent himself in the facts and circumstances of the case.
That apart, we find that appellant had actively participated in the interlocutory proceedings and he was fully aware of the fact that the suit was pending and his claim that the failure on his part to enter appearance and take steps in the suit was due to the indolence of his former Advocate on record appears to be unconvincing and an after-thought which has been looked up to justify the prayer for recall of the ex parte decree.
Accordingly, we are convinced on the factual matrix that writ of summons was duly served on the appellant and the latter was not prejudiced as he had been sitting on the fence, watching the proceeding and jumped into the fray only after the ex parte decree was passed in order to dilate the proceeding.
Such recalcitrant approach ought not to be encouraged by reopening the lis as we are convinced he had adequate opportunity to participate the said proceeding but chose not to do so.
No doubt due process is the handmaiden of justice but such process cannot be permitted to be misutilised so as to throttle justice itself.
For the aforesaid reasons, we are not inclined to interfere with the impugned order.
The appeal is, accordingly, dismissed.
Stay of operation of the order prayed for is rejected.
(MANJULA CHELLUR, CJ.) (JOYMALYA BAGCHI, J.) /AKGoswami SN