Judgment:
P.K. Bahri, J.
(1) This regular second appeal has been brought against judgment dated July 14, 1986, of Shri R. K. Sain, Additional District Judge, Delhi, by which he had dismissed an appeal brought against order dated October 3, 1983 of Shri K. S. Paul, Sub-Judge, Delhi, by which he had dismissed an application brought by the appellant seeking setting aside of ex-parte judgment and decree dated May 26, 1981. made in Suit No. 1151/80.
(2) At the outset, I may mention that the regular second appeal is not competent against the impugned appellate judgment. Under Order Xliii Rule 1 (d) of the Code of Civil Procedure (for short 'the Code'), an order under Order Ix Rule 13 of the Code rejecting an application for an order to set aside a decree passed ex-parte is appealable. That is why the appeal against the order of the Sub-Judge dismissing the application moved under Order Ix Rule 13 of the Code was filed and was decided by the Additional District Judge. No second appeal has been provided in respect of such a proceeding. Section 101 of the Code lays down that no second appeal shall lie except on the grounds mentioned in Section 100 of the Code. Under Section 100 of the Code, the second appeal lies to the High Court from every decree passed in appeal. The appellate order made in the present case is not covered by the definition of decree as given in Section 2(2). 'Decree' means the formal expression of an adjudication which as far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The si-it in the present case determining the rights of the parties finally was decided ex-part the application moved for setting aside ex-parte decree was decided by the Sub-Judge and that decision does not have the effect of deciding any controversy arising in the suit. So, on the face of it, neither the order of the Sub-Judge dismissing the application filed under Order Ix Rule 13 of the Code nor the order of appellate Court dismissing the appeal can be teemed to be included in the definition of 'decree'. Hence, I hold that the second appeal was not competent against the impugned order of the appellate Court. However, counsel for the appellant has prayed that the present appeal may be treated as a civil revision under Section 115 of the Code. It is true that this Court can treat the present appeal as a revision. However, the revision could be entertained only to see whether the courts below have exercised a jurisdiction not vested in it or have failed to exercise jurisdiction so vested or have acted in the exercise of its jurisdiction illegally or with material irregularity. I direct the office to register the present Regular Second Appeal as a civil revision.
(3) I have heard the arguments in detail in order to see whether this Court should intervene with the orders of the courts below in exercise of its revisional powers.
(4) The facts, in brief, are that Kishan Singh-respondent had .instituted a civil suit for recovery of possession of two rooms accommodation located on the first floor of house No. D-4/3, Krishan Nagar, Delhi, with the averments that the respondent- plaintiff is the owner of the said house and he 'had given possession of the premises in question to the petitioner-BaldevRaj as a licensee as he was a friend of the plaintiff. It was pleaded that somewhere in June 1979 the petitioner wanted to occupy some other portion in that house and so the plaintiff, wanted him to vacate the premises and after revoking the license and on refusal of the petitioner to vacate the premises, the suit was filed on October 29, 1980, seeking decree foi possession. The court directed issuance of summons for settlement of issues to the defendant for December 2. 1980, on deposit of process fee and registered cover. This order was made on October 30. 1980, The record shows that no registered cover was filed and thus. no registered summons were issued. However, ordinary summons came to be issued on November 1, 1980 and they were assigned to Kesho Ram, Process Server, on November 18. 1980 and he is stated to have visited the premises in question accompanied by Mahavir Prashad, Karinda of the plaintiff, on November 25, 1980 and purported to have effected personal service of the said summons with copy of the plaint on the defendant and he recorded his report on the summons A to A and the report was signed by Mahavir Prashad. The summons also show an endorsement purported to have been made by the defendant and signed by him and he had also put a date under his signatures at mark 'Y' & 'X'. The report indicated that Process Server accompanied by Mahavir Piashad reached the spot and the Process Server himself did not know the defendant and that the service was effected in person on the defendant by Kesho Ram by handing over to him a copy of the summons Along with copy of the plaint. As on the date fixed no appearance was put in, by the defendant, he was proceeded ex-parte and after recording ex-parte evidence the judgment and decree was passed on May 26. 1981.
(5) Oil December 23, 1981, an application was moved by the petitioner-JD seeking setting aside of the said ex-parte decree pleading that he had never been served with any summons whatsoever by the Court and he came to know about the passing of the ex-parte decree when on December 20, 1981, the respondent-DH himself had come to his premises and had threatened to evict the petitioner-JD forcibly with the aid of the police and informed him that legal process has already been completed and thus, he contacted a counsel and got the record inspected and found that a forged endorsement and signatures have been put on the summons and he pleaded that be never received any summons or copy of the plaint and had not made any endorsement or signatures on the said summons. He also gave facts on merits of the case pleading that he, in fact, hats been in possession of the premises as tenant at the rental of Rs. 175 per month. It is not necessary to make reference in detail to those facts because they would be relevant only on merits of the case if the suit is lo be reopened. In reply to this application, the respondent- Dh pleaded that the application is barred by limitation. He denied that he had contacted the defendant on December 20, 1981. and had held out any threats. He pleaded that the report on the summons is correct and he categorically denied that the endorsement and signatures on the Simmons are not of petitioner- JD. The learned Sub-Judge framed the following issue :
'WHETHER there is any sufficient cause for setting aside ex-parte decree ?'
No issue was framed with regard to the limitation point. However, the record shows that the evidence was led on the point of limitation also by the parties and thus, no prejudice has been caused to the parties for non-framing of specific issue on the point of limitation. The petitioner-JD' appeared in witness box and made a categorical statement on oath that the endorsement and the signatures purporting to be of petitioner-JD on the summons are not made by him at all. He stated that he was never tendered or delivered any summons by any one at any time in respect of the suit. He deposed that it is the respondent-DH himself who came to the premises on December 20, 1981 and held out the threat mentioning that he had already made all arrangements for evicting him with the aid of police and on his inquiry he was told even the name of the court where he had taken steps. He also stated that even earlier on 6th or 7th of December 1981, the respondent-DH had come and asked him to vacate the premises, it is for thrust time in cross-examination it was suggested to the petitioner-JD that when the summons were delivered to him by the Process Server he went inside the house and then brought back the summons bearing the endorsement and the signatures which fact, of course, was denied by the respondent. It is evident that no such plea has been taken by the respondent in the reply to the application that in fact, the endorsement and signatures appearing on the summons were not made in presence of the Process Server and Mahavir Prashad, Karinda of the plaintiff, rather a categorical plea has been taken that signatures and the endorsement appearing on the summons are those of the petitioner-JD. A suggestion given in cross-examination to the petitioner-Judgment Debtor was on the face of it against the pleadings and also was not in consonance with the report of the Process Server appearing on the summons. There was no mention in the report that the petitioner-JD had taken the summons inside the house and then brought them back and handed over the same with the endorsement and signatures already made. The suggestion in the cross-examination is that the petitioner-JD stated that he had no pen and he would make the necessary signatures after getting the pen and that is why he went inside the house with the summons.
(6) In rebuttal Kesho Ram, Process Server, appeared as RW1 and proved his report appearing on the summons in examination-in-chief. In the examination-in-chief he did not say that the petitioner-JD had taken the summons inside the house and that the endorsement and signatures purporting to be of petitioner-JD appearing on the summons were not made in his presence. But in the cross-examination he stated that the signatures and endorsement were not made in his presence. He did not give any reason as to why he did not insist on the petitioner-JD to sign the summons as token of his having received the copy of the summons and the copy of the plaint then and there at the spot. He does not explain as to how he had not mentioned in his report that the endorsement and the signatures have not been made in his presence. He also did not explain as to how he recollected such a fact after lapse of about 1 year. There was no order made by the court for issuance of any dusty summons. The Process Server did not explain as to why he waited for arrival of any Karinda of the plaintiff before going to effect service on the petitioner-JD. According to him, Mahavir Prashad had met him in the morning and told him that he was the Karinda of the plaintiff and then he accompanied him to the spot and Mahavir Prashad identified the petitioner-JD at the spot and copy of the summons and of the plaint were handed over to the petitioner-JD but he categorically stated that he himself did not know the petitioner-JD. He also deposed that even on the day he made the statement he on his own would not be able to trace out the house in question. RW2 Mahavir Prashad in his examination-in-chief deposed of his having taken the Process Server to the spot and his having been handed over the necessary summons and the copy of the plaint and he having signed as 'a witness. He stated that he was engaged by the respondent-Decree Holder for performing this job. In cross-examination he stated that he had never represented any other party in any other legal proceedings at any time. He stated that he has represented Decree Holder earlier also in one case and was paid Rs. 100 as his remuneration and he was again paid Rs. 100 as remuneration for accompanying the Process Server in this case. He does not say that he is a friend of Decree Holder. Obviously he could not be a friend when he charges remuneration for performing such petty job for the respondent-DH. It is not also understandable as to why necessity had arisen for respondent-DH to depute a particular person for accompanying the Process Server on the very first occasion to effect service of summons on the opposite party. He also admits that endorsement and signatures on the summons were not made by the petitioner-JD in his presence. He admitted that he was not on visiting terms with the petitioner-JD but he went on to state that he had visited a school functioning on the ground floor of the house a few times accompanied by the respondent-DH before and after the filing of the suit. RW3 is the respondent-DH, who deposed that he engaged the services of Mahavir Prashad for pursuing the case on his behalf and had paid him Rs. 100 as fee. He claims to be a friend of Mahavir Prashad but he admits that there is a sea difference, between social status of Mahavir Prashad and himself. Mahavir Prashad is stated to be milling clothes sitting on a Patri in Chandni Chowk. The case presents certain disturbing features. The suit had been filed and the court had directed for issuance of summons on deposit of process fee and registered cover. No registered cover was filed and no order was obtained for obtaining any dusty summons. Still the Process Server, who was entrusted the summons, waited for some person on behalf of the plaintiff to meet him before visiting the spot. No rules require that the Process Server should not on his own try to effect the service of summons when he has been deputed to do so by the court. Tillers should arise an occasion for the plaintiff to make some urgent steps to get effected the service on the opposite party if the opposite party has on previous occasions tried to avoid the service. Be that as it may, in the present case not only the report of the Process Server is against the evidence but a new story has been built up that in fact the endorsement and the signatures appearing on the summons were not made in presence of either the Process Server or Mahavir Prashad. It is also difficult to understand how Mahavir Prashad was selected for performing this job by the respondent-DH when it is not shown that this particular witness was familiar with the petitioner-JD and why the respondent-DH should incur extra expense of Rs. 100 for just seeing that Mahavir Prashad accompanied the Process server for effecting the service. At any rate, there is a categorical statement made on oath by the petitioner-JD that the summons does not bear his signatures and the endorsement also is not in his and. This statement remained unrebutted and challenged in cross-examination. Moreover, neither the Process Server nor Mahavir Prashad controverter the said statement of the petitioner-JO. Even the respondent-DH has not stated that the said signatures appearing on the summons are of petitioner-JD. So, an irresistible finding has to be given that in fact, the said summons do not bear signatures and the endorsement in the hand of the petitioner-JD. There was no occasion for examining any hand-writing experts by either side for showing that the said signatures or endorsement were of petitioner-JD, the appellate Court was not justified in observing in its order that the petitioner-JD was in the habit of signing differently on different occasions. The court on its own tried to find differences in the admitted signatures of petitioner- Jd appearing on the file on different papers. I do not understand how the duty was cast on the court to perform such job when the testimony of the petitioner-JD remained unchallenged or unrebutted that signatures and the endorsement appearing on the summons are not in his hand. The duty of the court comes into play for comparing the disputed signatures with some admitted signatures only when the parties are at issue on such a point and had led evidence in support of their respective pleas on such a point.
(7) Counsel for the respondent-DH has, however, vehemently argued that the findings of fact returned by the two courts cannot be interfered with by this Court as no jurisdictional error has been made by the two courts below. He has vehemently urged that the question whether a copy of the summons Along with copy of the plaint have been tendered and delivered to the petitioner-JD is a pure question of fact and both the courts have returned their findings in favor of the respondent-DH on this point. Hence, such a finding should not be disturbed by this Court. Normally, it is right that on a question of tact this court would not interfere while exercising revisional power but where the facts present a very 'disturbing features and courts have ignored the legal inferences which flow from the facts and the courts have also ignored certain provisions of the Code applicable to the facts of the case. then obviously this Court is duty bound to correct such jurisdictional errors committed by the two courts below.
(8) Now coming to Order V Rules 10& 16 of the Code, the provisions show that service of the summons can be effected by delivering or tendering the same to the person concerned. However, if the defendant is personally available and copy of the summons and the copy of the plaint are delivered to him, then it is the duty of the Process Server to ask the defendant to sign the summons as a token of his having received the copy of the summons and the copy of the plaint. Counsel for the respondent-DH has argued that as soon as it is proved that a copy of the summons and copy of the plaint have been delivered to the petitioner-JD the service is complete and even if petitioner-JD has not signed summons even then the service would be deemed to be complete. There is no dispute about this principle of law. However, the question which arose in the present case, was whether the provisions of Order V Rule 16 have been complied with or not. Both the courts below failed to notice the said provisions and ignoring the said provisions have come to the conclusion that the said service of the summons was complete as soon as it was proved that copy of the summons has been delivered to the petitioner-JD. The provisions of Order V Rule 16 of the Code are mandatory in nature as it is clearly mentioned that the serving officer shall require the signatures of the person to whom the copy was delivered or tendered to, as an acknowledgement of service endorsed on the original summons. The report of the Process Server on the summons showed that he had in fact complied with the provisions of Order V Rule 16 of the Code but in evidence it turned out that in fact no such compliance has been made. So, on this short ground alone the courts below should have come to the conclusion that no proper service of summons have been made on the petitioner-JD. The evidence of the Process Server and Mahavir Prashad, as discussed by me above and the circumstances of the case appearing from the record clearly indicated some foul play on the part of the respondent-DH. He was anxious to see that somehow or the other on the very first day the ex-parte proceedings are taken. He engages the services of a man whom he pays Rs. 100 on the very first occasion for sending him 'Along with the Process Server which is not the normal practice in the courts. There was no urgency in the suit. No injunction order was to be served on the opposite party which could have prompted the respondent-DH to engage special services of a person and incur expenditure of Rs. 100 on him.
(9) Counsel for the respondent-DH has referred to Teja Singh v. Jaswant Singh, Air 1935 Lah 171, in support of his contention that as soon as provisions of Order V Rule 10 of the Code are shown to have been complied with, the service should be deemed to be complete. In the cited case it was observed that where a person refuses to accept the summons when tendered by the Process Server .and the proceedings are taken ex-parte against him, the fact that the summons had not been affixed on the outer door of his house would be at the most an irregularity and would not affect the validity of the service. The facts of the cited case are totally distinguishable. It is not the case of the respondent-DH that the petitioner-JD had refused to accept the summons. Here the case set up in the pleadings was that the summons were accepted by the petitioner-JD and I he made the endorsement and had signed the same showing thereby that the provisions of Order V Rule 16 have been complied with. When on facts it is found that the petitioner-JD had not made any endorsement and signatures on the summons, then the finding was obvious that the provisions of 'Order V Rule 16 of the Code were not at all complied with by the Process Server. It is not understood why the petitioner-JD could not have been handed over the pen being carried by the Process Server for making the endorsement and the signatures on the summons in the presence of the Process Server himself and why he would . have allowed the petitioner to carry the summons inside the house. Rather this was not the report of the Process Server. It is only in evidence that such a new story was sought to be introduced in the case. Then, he referred to Rishi Kesh Badri U Parsbadv.Kidar Nath Hargu Lal. . In the cited case, the Process Server had delivered a copy of the summons and a copy of the plaint to the defendant but the defendant declined to sign the summons in token of acceptance of service. It was held that service would be considered to be 426 HCD/8?-12 sufficient. Again, the facts are distinguishable. Here, it is not the case that petitioner-JD h^d refused to sign the summons of his having received the copy. He has also cited Chatuibhuj Sohanlal v. M/s. dive Mills Company Limited, : AIR1964Cal241 . In the cited case also the facts were that a copy of the summons was delivered to the defendant who did not sign on the summons to give acknowledgement of his having received the copy of the summons. It was held that the service was completed. It is true that if as a fact it is proved that a copy of summons has been delivered to the defendant and the defendant has, for one reason or the other, refused to sign on the copy of the summons, the service would be complete but in the present case what the report of the Process Server showed was that the petitioner-JD had made endorsement and signatures on the summons acknowledging the receipt of the summons. If that fact is shown to be false, the inference is that in fact, copy of the summons was never delivered to the pedtioner-JD. So, nothing said in this judgment by Calcutta High Court is of any help to the respondent-OH. Reference is also made to Sohan Singh v. Surat Singh, 1986 Rlr 108 (4), in which it was laid down by this Court that the High Court cannot interfere under action 115 of the Code with concurrent findings of fact. However, where the findings of fact are arrived by the courts below ignoring the statutory provisions and are based on misconceptions, the same have to be interfered with by this Court while exercising the- revisional powers'. Lastly, reference was made to Durgabahadur Singh '& Others v.Durga Prasad Singh & Others, : AIR1953Pat346 . The facts of the said case are also distinguishable. In the said case also. it was shown that the defendant had refused to accept the summons and it was held that service was complete.
(10) Counsel for the petitioner-JD has cited Pulchand Khandelwal & Others v. Rameshwar Lal Satnaliwala & Another. : AIR1962Pat63 on the proposition that if the order of the lower court is against the provisions of law, then the same can be set aside under Section 115 of the Code. In the cited case, a suit was allowed to be withdrawn with liberty to institute fresh suit on the same cause of action on the ground which was not in consonance with the provisions of Order Xxiii of the Code. The High Court interfered with such an order in exercise of revisional jurisdiction. Almost on similar facts, this High Court also exercised revision at jurisdiction in Jagdish Chander Dhawan v. Karam Chand Mehra & Another, : AIR1968Delhi181 , it was opined in this judgment that the High Court has jurisdiction to interfere with an order which is passed not in consonance with the provisions of Order Xxiii of the Code because such defects are grave and material irregularities do not constitute mere error in the procedure or mere error of law. In The Bihar State Electricity Board & Another v. Jawahar Lal & Others Air 1976 Pat 323, it was observed that the errors contemplated by clause (d) of Section 115 of the Code may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision and not to errors of fact or of law. In the cited case, the impugned order was contrary to well established principles of law governing the grant of injunction under Order Xxix .Rule I of the Code. It was held that the order suffers from material irregularity 'and could be set aside under Section 115 of the Code.
(11) So, examining the case from every aspect, I find that the courts below have committed clear illegality in giving a finding that the summons have been properly served on the petitions r- JD. They ignored the mandatory provisions of Order V Rule 16 of the Code. Once it was shown that the report on the summons was not in consonance with the provisions of Order V Rule 16 of the Code, the court had no option but to hold' that summons have not been served on the petitioner-JD. So, I reverse the findings of the courts below that summons have been served on the petitioner-JD.
(12) Under Article 123 of the Limitation Act, the period for making an application for setting as'de ex-parte decree is 30 days from the date of knowledge where summons are not served. The petitioner-JD made a statement that he came to know about the passing of the decree from the mouth of the respondent-DH on December 20, 1981. The respondent-DH in reply to the application has not given any other date of knowledge of the petitioner-JP regarding passing of the decree. He had only relied on the factum of summons having been duly served. It is true that onus to prove 'that petitioner-JD acquired the knowledge of exparte decree on a particular date was heavy on the petitioner-JD. The petitioner-JD made a statement on oath that it was respondent who himself came to him on December 20, 1981 and asked him to vacate the premises and gave him a threat that he had made all arrangements including the police aid and had also told him the name of the court. The first appellate court held that it is improbable that respondent who was keen enough to obtain the ex-parte decree surreptitiously would have himself gone to the petitioner to apprise him of the fact of having taken the ex-parte decree and also to inform him about the name of the court. The first appellate Court has forgotten that it is the case of the respondent himself that he was having close friendly relationship with the petitioner-JD. So, there is nothing improbable that respondent himself, while visiting the premises in question, might have in off hand manner informed the petitioner about his having taken the ex-parte decree from a particular court. The lower appellate Court also made reference to the testimony of petitioner regarding visits of the respondent on 6th or 7th December 1981, but the lower appellate Court disbelieved that part of the testimony on the ground that no such fact was mentioned in the application and on these two days the respondent was busy in functions of marriage of his son. It is true that the respondent's son's marriage functions were to be performed during those days as is evident from the invitation cards Ex. RW3/B & Ex. RW3/A, yet they do not show that on 6th December 1981 there was no such function the respondent could not have visited the premises in question. Normally this Court would not have intervened in its revisional powers on a finding of fact with regard to the date of the knowledge but in the present case in absence of any other evidence to show that petitioner-JD was aware of the passing of the ex-parte decree, the lower appellate Court, in my opinion, committed grave illegality in drawing an inference that petitioner-JD must have had known about the ex-parte decree prior to even December 20, 1981. An application has been moved by the respondent for permission to lead additional evidence in the shape of a copy of the statement made by the petitioner-JD in another suit where the petitioner-JD had made a statement that he had no knowledge about the decree till December 31, 1981. That was a suit filed by the respondent for recovery of damages for use and occupation and plea has been taken by the petitioner in that suit that he paid rent up to December 1981. So, in that context he made a. statement that he had no knowledge about the decree till December 31, 1981. The statement has to be seen as a whole. It was not elicited from the petitioner in that statement as to when he had paid the rent of December 1981. It is possible that he might have paid the rent even prior to December 20, 1981 and he made the statement that he did not know about the ex-parte decree till payment of said rent of December 1981. So, no useful purpose would be served by allowing the respondent to lead any additional evidence in this case. Moreover, the respondent was very well aware about the said statement of the petitioner. Still no reason has been given as to why such statement could not be relied upon earlier. I dismiss this application (C.M. 815/88). So, I hold that the petitioner-JD came to know about the passing of the ex-parte decree only on December 20, 19SI and the application moved by him for setting aside of the ex-parte decree is within time.
(13) I allow this revision petition and set aside the orders of the lower courts and set aside the ex-parte Judgment and decree made in the suit and direct the lower court to now decide the suit on merits in accordance with law. The parties are directed to appear before the lower court for further proceedings on December 1, 1988. However, I leave the parties to bear their own costs.