Judgment:
D.N. Joshi, J.
1. This revision petition is directed against the order dated 27.5.1997 passed by the learned Additional Civil Judge (J.D.) & Judicial Magistrate, Jodhpur setting aside ex-parte decree passed on 16.2.1990 in civil original suit No. 876/89 'Leeladhar v. Bhanwarlal for eviction from the disputed shop.
2. An application for setting aside the said decree was filed under Order 9 Rule 13 C.P.C. by the defendant Bhanwarlal on 15th October, 1993 alleging that the summons of the suit were not duly served on him. He only came to know about the decree for the first time on 13th October, 1993 when the mob was standing in front of his shop. On enquiry being made, he came to know about the decree passed against him and the report made by the process server on the back of the summon. As per reply of the plaintiff, the defendant had knowledge of the filing of the suit as well as of passing of the decree. Therefore, the suit was rightly decreed ex-parte against him. The learned trial court recorded the evidence of both the parties and by order dated 27.5.1997, the ex-parte decree was set-aside and the case was restored to its original number. Hence, this revision.
3. Heard learned Counsel for the plaintiff-petitioner Shri R.P. Vyas and Shri Dinesh Maheshwari for the defendant Bhanwarlal.
4. It was argued by the learned Counsel for the petitioner that after the defendant's refusal to accept the summons before two Motbirs, the summons were affixed on his shop, There is no reason to believe the report of the process server Pratap Singh, NAW No. 3, because the defendant had refused to sign on the summons and thereafter summons were affixed on the disputed shop as per report of the process server Pratap Singh. Therefore, it cannot be said that the summons were not duly served. It was further argued that even if there is an irregularity in service of summons, the Court is mandated in view of the amended proviso second appended to Rule 13 of Order 9 C.P.C. not to set-aside the decree, passed ex-parte, merely on the ground, if it is satisfied that the defendant had notice of the summons and had sufficient time to appear and answer the plaintiffs claim.
5. The learned Counsel for the petitioner relied upon the following precedents in support of his arguments:
(1) Prem Chand v. Madanlal and Ors. 1994(1) RLW p. 427
(2) Omprakash v. Lala 1995 DNJ (Raj.) p. 567
(3) Govind Singh and Ors. v. Madan Singh and Ors.
6. He has further argued that the provisions of Order 5 Rule 19-A of the Code of Civil Procedure is not mandatory and therefore, the decree cannot be set aside on this ground alone. For this purpose, he relied upon the following judgments:
(1) Varalakshmi v. C. Hanumanthi 1998 A.I. H.C. p. 4764
(2) Madugula Kankadurga v. Bollapragudea Kameswami 1998 A.I.H.C. p. 1384
(3) Sarbeswar Ghosh v. Manad Kumar 1992 Calcutta p. 82
Per contra, the learned Counsel for the non-petitioner-defendant supported the order of the learned trial Court. He placed reliance on a decision of the Supreme Court in Manick Chandra Nandy v. Debdas Nandy and Ors. reported in : AIR1986SC446 and argued that the exercise of revisional jurisdiction of this Court is confined to question of jurisdiction. While in a first appeal, the Court is free to decide all questions of law and fact, which arise in the case, the exercise of its revisional jurisdiction. The High Court is not entitled to re-examine or re-assess the evidence on record and substitute its own findings on facts for those of the subordinate Court.
7. Relying on the decision of this Court in Tilak Raj v. Mst. Lalli Bai reported in WLN 1975 p. 656, the learned Counsel for the non-petitioner argued that the summons Ex. 1 does not contain the sur-name of the defendant and it only contains 'Kallaji-Ka-Bhawan'. It does not transpire whether the place where the summons were alleged to have been served, was a place of residence or of business. The summons were not sent at the residence of the defendant and the report of the process server cannot be relied upon. Firstly, it was expected to serve the summons at the residence of the defendant and thereafter, at the place of business of the defendant. It also does not transpire, who identified the shop. The service of summons is highly doubtful as no attempt was made to serve the summons on the defendant on his residence. Further, no details of the Motbirs have been given on the back of the summons, in whose presence the summons were alleged to have been served upon the defendant. The rent of the premises have been paid up to September, 1993 and no cross-examination was done on behalf of the plaintiff on this point and the so called ex-parte order was passed in the year 1990. It was further argued that there is no failure of justice. The trial is pending at the stage of recording evidence after framing issues. There is no jurisdictional error in the order of the trial Court.
8. The suit was presented on 13.12.1989.
9. I have gone through the summons Ex. 1, which was issued on 23.12.1989 for the next date of hearing i.e. 1.2.1990. It was issued to Bhanwarlal without mentioning the number of the case and the nature of the suit. The report of process server Pratap Singh is silent about the identity of the person, upon whom the service was to be effected. He has simply stated that he asked Bhanwarlal to take summon and on his refusal, memo and a copy of the summons were affixed on the shop before the Motbirs. As per Rule 12 of Order 5 of C.P.C., wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. But, it does not appear that any steps were taken by the process server to effect service on defendant Bhanwarlal personally. The suit related to a shop for eviction on the ground of necessity. Further Rule 14 of Order 5 cannot be made applicable before it is shown that Rule 12 cannot be complied with. under Rule 15 of Order 5, all possible inquiries were to be made to find out as to when the defendant is likely to return to his residence, and the process server must state in his affidavit. What enquries were made and whether it was found a reasonable under the circumstances to assume that the defendant could not be found at his residence within reasonable time.
10. I have also gone through the statement of Pratap Singh, NAW no. 3, recorded in the trial Court and it is silent about all these facts. He has simply affixed the summons when, as per his statement, the defendant refused to sign the acknowledgment.
11. Service under Rule 17 of Order 5 is permissible only (i) if the defendant or his agent or such other person as is stated Rules 13-15 refused to sign acknowledgment or (ii) if the serving officer after using all due and rasonable diligence cannot find the defendant and there is no agent or other person on whom service can be made. In case of return under Rule 17, the court shall record a distinct declaration of service.
12. As per statement of Pratap Singh - Process Server in Civil Misc. Case No. 123/93, Bhanwarlal was not known to him, Bhanwarlal was identified by Pratap Singh only on behalf of a person, who was also not known to Pratap Singh (see page 2 of his statement). Therefore, the statement of Pratap Singh cannot much be relied that Bhanwarlal has refused to serve the summons. The proviso to Order 9 Rule 13 can be applied when there is an irregularity in the service of summons, but cannot be made applicable when there is no service at all. In the case in hand, no service of the summons was effected on the defendant. The learned trial Court has discussed the evidence led by both the parties in right perspective and there seems to be no reason to take a different view from it.
13. One of the striking feature in the present case is that the defendant-applicant has pleaded the payment of rent up to September, 1993, but in its reply, this fact has not been controverted, despite the fact that the alleged decree was passed on 16.2.1990. This goes to show that the plaintiff wanted to keep in dark the opposite party about the filing of the suit and passing of the decree.
14. The case of Govind Singh v. Man Singh (supra) relied by the counsel for the petitioner is distinguishable on facts as in that case on the date of affixture for his appearance, the defendant was at Ahmedabad. It cannot be said that on evidence led by the parties that the defendant was in know of the filing of the suit in the case before hand. The case of Prem Chand v. Madan Lal (supra) is also distinguishable on facts. In that case, the summons did not accompany the copy of the plaint.
15. The case of Omprakash v. Lala (supra) is also distinguishable. In that case, the appellant after going through the summons, refused to accept it.
16. Therefore, the impugned order cannot be said to be perverse. There is no jurisdictional error in the impugned order. It also cannot be said that if the impugned order is allowed to stand, it would occasion the failure of justice. The revision petition is liable to be dismissed and is hereby dismissed. No order as to costs.