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Shakuntala Singh v. Basant Kumar Thakur And Others

Madhya Pradesh High Court

Nov 12, 2002

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

The appellant has filed an appeal challenging an order of the trial Court which rejected her application under Order 9, Rule 13 of the Civil Procedure Code (CPC). Respondent Basant Kumar had instituted Civil Suit No. 7A/1994 on 7-3-1994; that suit was decided ex parte on 26-7-1994.

The appellant's case was that summons were not served on her. The respondent contended that summons were duly served through the appellant's husband and that the appellant had knowledge of the suit. A further summon in the name of the applicant's mother (Ex. D.3) bears an endorsement by the appellant's husband that the appellant resides at Jhansi; the husband is recorded to have refused to receive the summon (endorsement dated 24-3-1994). Because of the service dispute and the ex parte decision, the appellant filed an application under Order 9, Rule 13 CPC which was rejected by the trial Court; this decision is the subject of the present appeal.

Legal Issues Presented

Whether the trial Court erred in passing an ex parte decree without properly verifying service of summons in accordance with Rules 17 and 19 (and related provisions) of Order 5, CPC.
Whether non-compliance with the procedure for refusal/affixing of summons (as in Rules 17–19 of Order 5) and absence of affidavit or examination of the process server vitiates the service and justifies setting aside the ex parte decree under Order 9, Rule 13 CPC.
Whether the appellant's application under Order 9, Rule 13 was barred by limitation, and if so, whether the time spent in obtaining a certified copy of the decree/judgment can be excluded or constitutes sufficient cause to condone delay.
Whether the circumstances amount to "sufficient cause" under Order 9, Rule 13 so as to allow the court to set aside the ex parte decree.

Arguments of the Parties

Appellant's Arguments

No summons was served on the appellant.
The procedure on refusal of summons (Ex. D.4) was not followed as required by Rules 17, 18 and 19 of Order 5 CPC.
There is no affidavit of the serving officer; the trial Court did not record the serving officer's statement on oath and the respondent did not examine the serving officer.
Reliance was placed on Baijnath v. Harishankar (2001 (2) MPLJ 142) to argue that the ex parte decree deserves to be set aside where procedural requirements for service were not followed.
The appellant only became aware of the decree when her husband learned of it on 30-3-1998; she applied for a certified copy the same day and received it on 6-6-1998. Due to court vacations and the date of reopening, the challenge was filed within time once the Court reopened (the appellant's counsel argued that Order 9, Rule 13 is not penal and that delay is explainable).
Reliance was placed on G.P. Shrivastava v. R.K. Raizada ((2000) 3 SCC 54) for the proposition that "sufficient cause" under Order 9, Rule 13 must be liberally construed.

Respondent's Arguments

Summons were duly served on the appellant.
The appellant had knowledge of the pendency of the suit; therefore, under the second proviso to Rule 13, Order 9, mere irregularity in service cannot be a ground to set aside an ex parte decree.
The application to set aside was time-barred: the husband of the appellant became aware of the ex parte decree on 30-3-1998 and the appellant should have applied within 30 days; there was no need to wait for a certified copy and hence the application was barred by limitation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Baijnath v. Harishankar, 2001 (2) MPLJ 142	Procedure required when service is disputed; trial Court must examine process server and ensure compliance with Order 5, Rule 19 (and Rule 17 mechanics).	The Court relied on this authority to hold that the trial Court erred in directing ex parte proceedings without examining the process server and without affidavit evidence of service; this supported setting aside the ex parte decree.
G.P. Shrivastava v. R.K. Raizada, (2000) 3 SCC 54	"Sufficient cause" under Order 9, Rule 13 is to be liberally construed; courts have wide discretion to allow setting aside where no negligence is imputable.	The Court invoked this principle to justify a liberal view of "sufficient cause" in favour of the appellant when considering the application under Order 9, Rule 13.
Kunja v. Lalaram, 1987 MPLJ 746	Rule 19 of Order 5 is mandatory; Court must make a judicial order while accepting service effected under Rule 17; non-compliance causes injustice.	The Court cited Kunja to reinforce that mandatory compliance with Order 5, Rule 19 is necessary and that failure to examine/verify service is impermissible.
Baburao Soma Bhoi v. Abdul Raheman Abdul Rajjak Khatik, 2000 (1) Mh. L.J. 481 : (1999) All India High Court Cases 3725	Return of summons should be accompanied by affidavit of process server (Form 11); if absent the Court must record the process server's statement and make further inquiry.	The Court used this authority to support the proposition that where the process-server's affidavit is absent, the trial Court was obliged to examine the server or make enquiry before proceeding ex parte.
Additional Collector of Custom, Calcutta v. Best and Company, AIR 1966 SC 1713	Time taken in obtaining a copy of the judgment/decree may be excluded; parties may be allowed the time spent in obtaining certified copies.	The Court applied this principle to hold that the appellant's waiting to obtain a certified copy (applied 30-3-1998, delivered 5-6-1998) justified condonation of delay and that the application could not be rejected solely on limitation grounds.
Imperial Bucket Co. v. Smt. Bhagwati Basak, AIR 1954 Cal 520	Discussion regarding exclusion of time for obtaining certified copies and interpretation of relevant statutory provisions.	Cited within the Court's discussion on exclusion of time; used as part of a line of authorities explaining when time for obtaining copies may be excluded.
Gangaram v. Beharilal, AIR 1952 Bhopal 39	Discusses conditions under which subsections of section 12 apply; referenced in the context of excluding time for obtaining copies.	Referred to as part of the overview of authorities on exclusion of time taken to obtain copies; Court considered this material in assessing whether delay was excusable.
Surty's case, 55 Ind. App. 161 : AIR 1928 PC 103	Privy Council authority on exclusion of time taken in obtaining copy of judgment/decree; supports exclusion irrespective of procedural rules permitting filing without annexed copy.	Used in the Court's reasoning to support the position that time spent obtaining a certified copy can be excluded for limitation purposes.
Hajia Hassum v. Noor Mohammad, (1904) ILR 28 Bom 643; Kalipada Kartnakar v. Shekharbasini Dasya, AIR 1917 Cal 320; Wajid Ali Shah v. Nawal Kishore, (1895) ILR 17 All 213	High Court authorities referenced in the historical discussion about exclusion of time for obtaining copies.	Cited within the Court's summary of authorities addressing exclusion of time in obtaining copies; used to demonstrate the historical treatment of that issue.
Abdul Aziz & Another v. Jai Ram & Others, AIR 1951 Him Pra 67	Another regional authority considered in the broader discussion about exclusion of time.	Referred to in the Court's exposition of precedents governing exclusion of time when obtaining certified copies.

Court's Reasoning and Analysis

The Court undertook a fact-specific and rule-focused analysis. Its central analytical steps were:

Examination of the record of service (Ex. D.4): The endorsement indicated the process server attempted service on Govind Narayan Singh, was refused, and then the summon was affixed on the house. However, the return was not accompanied by an affidavit from the process server, nor was the process server examined by the trial Court.
Application of mandatory procedural rules (Order 5, Rules 17 and 19 CPC): The Court emphasized that where service is disputed, the trial Court must either have the process-server's affidavit or must record the process-server's statement and make appropriate enquiries. Non-compliance with these rules makes service unverifiable and invalid for the purposes of proceeding ex parte.
Reliance on precedents (Baijnath; Kunja; Baburao Soma Bhoi): These authorities were applied to show that the trial Court's casual or negligent approach—proceeding ex parte without verifying service—was impermissible and caused injustice to the defendant (appellant).
Consideration of limitation and exclusion of time: The respondent argued that the application under Order 9, Rule 13 was time-barred because the appellant's husband learned of the decree on 30-3-1998. The Court analyzed whether waiting for a certified copy could justify the delay. It referred to Supreme Court and Privy Council authorities (Additional Collector of Custom v. Best & Co. and related cases) to hold that time taken to obtain a certified copy may be excluded and that waiting for or obtaining a copy can constitute sufficient cause to condone delay.
Evaluation of "sufficient cause": Applying G.P. Shrivastava, the Court noted that "sufficient cause" is an elastic expression and must be liberally construed; courts have wide discretion particularly where no negligence is imputable to the applicant.
Consideration of the appellant's interest in contesting the suit: The appellant placed on record a photocopy of judgment in C.S. No. 312-A/1995 (dated 30-1-1996) in which an issue (Issue No. 4) concerning factual parentage of Basant Kumar was decided against him. The Court took this as evidence that the appellant had a genuine interest in contesting the suit and did not wilfully allow an ex parte decree to be passed against her.
Conclusion from combined analysis: Because the trial Court did not make the necessary enquiries or verify service in accordance with Order 5 (Rules 17 and 19), and because the delay in filing the application could be reasonably explained by the time spent obtaining a certified copy, the Court found that the trial Court erred in rejecting the application under Order 9, Rule 13 and in proceeding ex parte.

Holding and Implications

Holding:

The order of the IXth Additional District Judge, Jabalpur in MJC No. 28/1999 dated 8-5-2001 is set aside. The application filed by the appellant under Order 9, Rule 13, CPC is allowed and the ex parte decree passed in C.S. No. 7-A/1994 dated 26-7-1994 is set aside.

Direct consequences and directions:

All parties are directed to appear before the trial Court on 16-12-2002.
The trial Court is directed to proceed in C.S. No. 7-A/1994, allow the applicant to file a written statement, and proceed in the suit in accordance with law.
There is no order as to costs.

Broader implications:

The decision reaffirms that mandatory procedural safeguards concerning service (Order 5, Rules 17 and 19) must be complied with where service is disputed, and that failure to verify service may vitiate an ex parte decree. It also applies established authorities permitting liberal construction of "sufficient cause" under Order 9, Rule 13 and recognizing exclusion of time spent in obtaining certified copies for limitation purposes. The opinion does not purport to lay down a novel precedent beyond applying and reconciling prior authorities to the facts of this case; its effect is to restore the appellant's right to defend the suit on the merits by setting aside the ex parte decree and remitting the matter for trial.

Order accordingly.

Show all summary ...

1. Appellant has filed present appeal challenging the order passed by the Court below by which her application under Order 9, Rule 13, Civil Procedure Code was rejected.

2. Respondent Basant Kumar filed a suit bearing No. 7A/1994 on 7-3-1994. This suit was decided ex parte on 26-7-1994. The contention of the appellant is that summon was not served in the suit. On the other hand the respondent submits that appellant was duly served through her husband and was having knowledge of the suit. Another summon was issued in the name of mother of the applicant Smt. Girija Bai (Ex. D. 3), on which husband of appellant made an endorsement that she resides at Jhansi. This endorsement was made on 24-3-1994 and on the same day the husband of the appellant refused to receive the summon Ex. D. 3, issued to appellant and because of which ex parte order was passed against the appellant. The application filed by the appellant was also barred by time.

3. Learned counsel for the appellant submits:—

(a) that no summon was served on the appellant.

(b) the procedure on refusal of summon Ex. D. 4 not followed as required in the Rules 17, 18 and 19 of Order 5, Civil Procedure Code.

(c) there is no affidavit of serving officer and Court has not recorded the statement of serving officer on oath. Respondent has also not examined him in this regard.

4. Relying on judgment of this Court in case of Baijnath v. Harishankar, 2001 (2) MPLJ 142. Learned counsel for the appellant submits that ex parte decree passed in the case deserves to be set aside. The appellant got knowledge of the decree only when husband of the applicant became aware of ex parte decree on 30-3-1998. Thereafter she applied for certified copy on the same day which was received by her on 6-6-1998. On 6-6-1998 there was summer vacation and on the day when the Court open on 26-6-1998 this application was filed which is within time. The provisions of Order 9, Rule 13, Civil Procedure Code are not penal in nature. Reliance is placed on the judgment of Apex Court in case of G.P Shrivastava v. R.K Raizada, (2000) 3 SCC 54.

5. Learned counsel for the respondent submits that:—

(a) summons were duly served on appellant,

(b) the appellant was having knowledge in respect of pendency of the suit and in view of second proviso Rule, 13 Order 9, merely on the ground of irregularity in the service of summon the ex parte decree cannot be set aside,

(c) the application was barred by time. On 30-3-1998 appellant was having knowledge of the ex parte decree. She ought to have filed an application for setting aside ex parte decree within 30 days. There was no necessity to await the certified copy of the judgment and decree. The application can be filed without certified copy of the decree so the application filed by the appellant was barred by time.

6. Considering the aforesaid contention raised by the parties, firstly the summon Ex. D. 4 seen. From the endorsement of the Ex. D. 4 it appears that the process server tried to serve the summon on Govind Narayan Singh, and on his refusal the summon was affixed on the house. But, this service has not been verified by the process server by affidavit nor he was examined in the case by the trial Court. Apart from this when the service was seriously disputed by the appellant in the trial Court it was obligatory on the part of respondent to examine process server who has affected the service. In absence of such, service cannot be held to be valid, it is contrary to the provisions of Rules 17, 19 of Order 5, Civil Procedure Code. This Court in the case of Baijnath v. Harishankar reported in 2001 (2) MPLJ 142 has considered this question and held:—

“19. In Kunja v. Lalaram, 1987 MPLJ 746, it has been laid down that the provisions of Rule 19 of Order 5 of the Code are mandatory and cast a duty on the Court to make a judicial order while accepting service effected in the manner prescribed under Rule 17 of Order 5 of the Code. It has further been observed that non-compliance of Order 5, Rule 19 will cause serious injustice to the defendant. Bombay High Court in Baburao Soma Bhoi v. Abdul Raheman Abdul Rajjak Khatik ., 2000 (1) Mh. L.J 481 : (1999) All India High Court Cases 3725, has observed that the return of summons should be accompanied by the affidavit of the process server, which is in Form 11 of the First Schedule of the Appendix “B” of the Code. If the return report of the process server is without an affidavit, the Court has to record the statement of process server and after making further enquiry, the Court should hold that the summons has been duly served or not.

20. In the instant case as noticed above, the trial Court without examining the process server, directed that the appellant/defendant No. 1 be proceeded against ex parte; even though the report of the process server was not accompanied with his affidavit. Obviously such a course was not permissible.

24. In the instant case, since the trial Court has not made any enquiry regarding the service of summons on the appellant as also regarding the refusal of summons reported by serving officer, the mandatory requirements of Order 5, Rule 19 of the Code have not been duly complied with. The approach of the trial Court during trial as also while holding the enquiry on the application of the appellant under Order 9, Rule 13, Civil Procedure Code, for setting aside ex parte judgment and decree passed against him, appears to be rather casual and negligent, as has been pointed out above. Moreover, the cause of delay shown by the appellant is belated filing of the said application under Order 9, Rule 13 read with section 151 of the Code also deserves acceptance.”

7. In view of the aforesaid, the trial Court erred in proceeding ex parte without following the procedure as envisaged in Rule 17 and 19 of Order 5 and ex parte order passed in civil suit deserves to be asset aside only on this ground.

8. Another contention of the respondent is that present application was barred by time. On 30-3-1998 husband of the appellant got knowledge of the summon but has waited upto 22-6-1998 while there was no necessity to file certified copy of the judgment and decree, it is true that there is no necessity of filing of certified copy of the judgment and decree in an application to set aside ex parte decree, but appellant has applied for the certified copy and has waited till the certified copy is received from the Court and thereafter applied for setting aside ex parte decree then her application cannot be rejected merely on the ground of limitation. Even if the certified copy is not required then appellant may need to go through the ex parte judgment and decree to know the contents of it. Appellant has spent some time in obtaining certified copy then it is sufficient ground to condone the delay which occurred because of it, but the application cannot be rejected merely on this ground. The Apex Court in the case of Additional Collector of Custom, Calcutta v. Best and Company, AIR 1966 SC 1713, has considered this and held:—

“12. In Imperial Bucket Co. v. Smt. Bhagwati Basak, AIR 1954 Cal 520 there are however observations to the effect that an appellant will have the benefit of section 12 in a case where he has annexed to the memorandum of appeal a certified copy of the judgment appealed from even though by the statute under which the appeal is filed, no certified copy of the order appealed from is required. This decision does not necessarily mean that where a copy is applied for and obtained but not annexed the time in obtaining it was for a thing not requisite. As the Privy Council observed, a party might like to examine the judgment or the decree or the Order before he challenged it in a higher forum. Though the judgment states that such time would be excluded where the copy is annexed, it does not lay down that there can be no exclusion of time where it is not annexed. But in Gangaram v. Beharilal, AIR 1952 Bhopal 39 a view has been taken that sub-sections (2) and (3) of section 12 would only be attracted when a copy of the judgment or decree or order appealed from accompanies the application for review. This view is not in consonance with and in fact is contrary to the interpretation of section 12 by the Privy Council in Surty's case, 55 Ind. App. 161 : AIR 1928 PC. 103 (supra) and is therefore unwarranted. The same must also be said of Abdul Aziz & Another v. Jai Ram & Others, AIR 1951 Him Pra 67. As observed by the Privy Council in Surty's case, 55 Ind App 161 : AIR 1928 PC 103 (supra) the view of the High Courts of Bombay, Calcutta and Allahabad as expressed in Hajia Hassum v. Noor Mohammad, (1904) ILR 28 Bom 643, Kalipada Kartnakar v. Shekharbasini Dasya, 24 Cal LJ 235 : AIR 1917 Cal 320 and Wajid Ali Shah (Petitioner) v. Nawal Kishore (Opposite Party)., (1895) ILR 17 All 213 was that an appellant was entitled to exclusion of time in obtaining a copy of a judgment and decree even though the rules permit him to file the appeal without annexing such a copy. The view contended for on behalf of the respondents is thus not only contrary to the decision of the Privy Council but if accepted would lead to a somewhat surprising result, viz. that if the petitioners had waited till the copy of the order was furnished to them, their application would have been in time or if they had withdrawn their application and filed a fresh one or amended their application and annexed the copy of the order such a fresh application, or such amended application which in its unamended form was in their view time barred would have been well within the period of limitation. In our view such a result is not to be contemplated. As the Privy Council has laid down the provisions of section 12(2) and (3) are a positive direction excluding the time taken in obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Code of Civil Procedure or the rules made by a Court under section 122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would-be appellant but do not govern the positive direction contained in section 12. The High Court in this view, therefore, was not right in dismissing the petitioners' application for leave to appeal on the ground that it was barred by limitation.”

9. In view of the above if appellant has awaited till she gets certified copy of judgment and decree, her application cannot be rejected merely on the ground of limitation. Applicant has applied for certified copy of the judgment and decree on 30-3-1998 which was delivered on 5-6-1998, and it was filed along with the present application. In the circumstances there is justification in not filing application within 30 days from 30-3-1998 and appellant has made out sufficient ground in this regard.

10. The Apex Court in the case of G.P Shrivastava v. R.K Raizada (supra) has considered the scope of Order 9, Rule 13, Civil Procedure Code whereas the Apex Court held:—

“7. … The Words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9, Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case……….”

11. Learned counsel for the appellant has filed photocopy of the judgment passed in C.S No. 312-A/1995 dated 30-1-1996 in which issue No. 4 was whether Basant Kumar is son of Munnalal from Rampyari Bai, This issue was decided against Basant Kumar and it is held in that case that he is not son of Mannulal. The same question was involved in the present case in which ex parte decree was passed. Though, the learned counsel for the respondent submits that the judgment and decree passed in C.S No. 312-A/1995 dated 30-1-1996 is under challenge in First Appeal before this Court. But, considering the aforesaid, it appears cannot be said that appellant was not interested in contesting the suit and has wilfully suffered ex parte decree against her. In view of the aforesaid legal position the lower Court erred in rejecting the application filed by the appellant. The order passed by IXth Additional District Judge, Jabalpur in MJC No. 28/1999 dated 8-5-2001, is set aside. Application filed by the appellant under Order 9, Rule 13, Civil Procedure Code is allowed and ex parte decree passed in C.S No. 7-A/1994 dated 26-7-1994 is set aside. As all the parties are present before this Court, in the circumstances they are directed to appear before the trial Court on 16-12-2002. The trial Court will proceed in the C.S No. 7-A/1994 and will allow the applicant to file written statement and will proceed in the suit in accordance with law. No order as to costs.