Summons, Delivery of proces, Setting aside of ex partee Decree: Delhi High Court

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 04.10.2016
Judgment delivered on: 25.10.2016
+ FAO (OS) 108/2016
SWEETY GUPTA ….. Appellant
versus
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.
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE ASHUTOSH KUMAR
JUDGMENT
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
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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
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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.
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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.”
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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
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which an ex parte judgment and decree could be set aside/rescinded.
Rule 13 of Order IX reads as hereunder:-
13. Setting aside decree ex parte against defendant—
In any case in which a decree is passed ex parte against
a defendant, he may apply to the Court by which the
decree was passed for an order to set it aside; and if he
satisfies the Court that the summons was not duly
served, or that he was prevented by any sufficient cause
from appearing when the suit was called on for hearing,
the Court shall make an order setting aside the decree as
against him upon such terms as to costs, payment into
Court or otherwise as it thinks fit, and shall appoint a
day for proceeding with the suit:
Provided that where the decree is of such a nature that it
cannot be set aside as against such defendant only it
may be set aside as against all or any of the other
defendants also:
[Provided further that no Court shall set aside a decree
passed ex parte merely on the ground that there has been
an irregularity in the service of summons, if it is
satisfied that the defendant had notice of the date of
hearing and had sufficient time to appear and answer the
plaintiff’s claim]
[Explanation.—Where there has been an appeal against
a decree passed ex parte under this rule, and the appeal
has been disposed of an any ground other than the
ground that the appellant has withdrawn the appeal, no
application shall lie under this rule for setting aside that
ex parte decree.]
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11. It would be relevant here in this context to state that before the
amendment in the Code of Civil Procedure, Rule 13 of Order IX
provided that when a decree had been passed ex parte against the
defendant who satisfied the Court that summons were not duly served
upon him, the Court was bound to set aside the decree. It was
immaterial whether the defendant had knowledge about the pendency
of suit or whether he was aware as to the date of hearing and yet did
not appear before the Court. The Law Commission, after considering
the expression “duly served”, recommended for amendment of Rule
13 and a second proviso was added mandating that 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.
12. Thus under the amended provision it makes no difference as to
whether the defendant was actually served with the summons in
accordance with the procedure laid down and in the manner prescribed
in Order V of the Code, but whether (i) he had notice of the date of
hearing of the suit; and (ii) whether he had sufficient time to appear
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and answer the claim of the plaintiff. If the answer to the aforesaid two
posers are found in the affirmative, there can be no rescinding of an
ex-parte decree even if it is proved that the summons were not duly
served. What is of importance now is that the Court is required to be
convinced that the defendant had otherwise knowledge of the
proceedings and he could have appeared and answered to the claim of
the plaintiff.
13. The facts giving rise to the present dispute are as hereunder.
14. A suit for partition, injunction and rendition of accounts was
filed by plaintiff/respondent No.1 being CS(OS) No.2209/2008 titled
“Neety Gupta v Usha Gupta & Ors”, claiming 1/5th share in the suit
properties namely immoveable properties bearing Nos.B-7, 80/2,
Safdarjung Enclave, New Delhi-29 and B-9, Rohit Kunj, Pitampura
(Rohtas Cooperative House Building Society, Delhi) as well as
movable properties of the estate of her deceased parents.
15. By order dated 20.10.2008 summons were directed to be issued
to the defendants subject to the plaintiff taking steps within five days
by all modes prescribed under Order V Rule 9 of the CPC. In the
meantime the defendants were restrained from alienating, transferring,
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selling or parting with possession of the suit properties till the next
date of hearing. On 02.02.2009, fresh summons were issued to the
defendants, returnable for 07.07.2009.
16. On 07.07.2009, defendant No.2 appeared and was directed to
file the written statement within four weeks. Since the Registry had
reported that defendant Nos.1, 3 & 4 (appellant) had refused the
service, they were directed to be proceeded ex-parte.
17. Since defendant No.2 had admitted the claim of the plaintiff and
there was an order for proceeding ex parte as against other defendants
including the present appellant, the Court vide order dated 27.09.2011
passed a preliminary decree holding the parties to have 1/5th share
each in the suit property. By the same order, one advocate was
appointed as Local Commissioner to suggest the mode of partition and
was directed to issue notices to all the parties before suggesting such
mode of partition and then submit her report by the next date of
hearing. It was further directed that a copy of the preliminary decree
be served by the Local Commissioner on all the defendants for them to
appear before her and suggest the mode of partition.
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18. The appellant/defendant No.4, grieving that the order dated
27.09.2011 was passed in her absence and without her having been
served with the summons in the suit and which fact she came to learn
only on 02.11.2011 through defendant No.3, preferred IA
No.19352/2011 under Order IX Rule 13 CPC for setting aside of the
preliminary decree, primarily on the grounds that she had been
residing in B-7, 80/2, Safdarjung Enclave, New Delhi-29 which was
given to her by her late mother by virtue of a registered Will dated
17.09.2001 and which fact was known to the plaintiff/respondent No.1
and that the appellant was never served with the summons in the suit
nor did she have any knowledge of the suit or was she ever intimated
about the pendency of the suit, especially regarding the property
which had devolved upon her.
19. The aforesaid application of the appellant/defendant No.4 was
contested by the plaintiff/respondent No.1 who submitted that the
summons in the suit was sent to the appellant vide registered post
bearing registration No.R1 6773 dated 27.05.2009 which was returned
with the remark “refused” on 28.05.2009. Apart from this mode of
service, it was contended by the plaintiff/respondent No.1 that the
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summons were also sent through ordinary process which was
attempted to be served on 02.06.2009 and 25.06.2009 but to no avail.
A copy of the plaint was also sent by the counsel for the
plaintiff/respondent No.1 to the appellant vide registered letter No. RL
ADA 3381 dated 22.10.2008. The Local Commissioner is also stated
to have sent notice of the order dated 27.09.2011 to the appellant vide
registered post No. RD 076732354IN dated 17.10.2011 and through
speed post No. ED 341520145 IN. It was, thus stated by the
plaintiff/respondent No.1 that the appellant/defendant No.4, in
collusion with the other defendants, made desperate efforts to avoid
appearing before the Court and thereby sought to prevent the Court
from passing the preliminary decree which ultimately was passed on
27.09.2011.
20. While dealing with the aforesaid application under Order IX
Rule 13 of the CPC referred to above, the learned Single Judge on
26.11.2012 framed the following issue:-
“Whether the applicant/defendant No.4 did not refuse to
accept process when tendered by the postman on
29.05.2009.”
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21. The learned Single Judge after analyzing the provisions of
Order IX Rule 13 of the CPC and the relevant judgments of the
Supreme Court declaring that once there is an endorsement of refusal,
it is incumbent upon a person who wants to rebut the presumption of
service, to disprove such service by summoning the postman and also
noticing the fact that there was an intimation/letter by DDA dated
20.04.2009 (Exh.PW1/VII) informing the appellant/defendant No.4
that the mutation over one of the suit properties was not possible till
the disposal of the suit bearing No. CS(OS) 2209/2008 i.e. the present
suit (Smt Neety Gupta v Usha Gupta & Ors) is settled by the High
Court, rejected the prayer of the appellant for setting aside of the
preliminary decree dated 27.09.2011.
22. Mr Abhijat, learned advocate appearing for the appellant
assailed the order on the ground that the service of summons by
registered post or through ordinary post have not been proved in as
much as the postman and the concerned process server have not been
examined. It has been further submitted by Mr Abhijat that the so
called notice sent by the counsel for the plaintiff/respondent No.1
dated 22.10.2008 also could not be proved because neither the counsel
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nor the postman was examined by the plaintiff/respondent No.1. It
was only a bald allegation of collusion of the appellant with other
defendants, which fact also could not be established. Finally, it has
been submitted that the burden of proof regarding the factum of
service rests entirely with the plaintiff/respondent No.1 as “due
service” is asserted by the plaintiff. A reference was made to Sections
101 and 103 of the Indian Evidence Act, 1872.
101. Burden of proof —
Whoever desires any Court to give judgment as to any
legal right or liability dependent on the existence of
facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any
fact, it is said that the burden of proof lies on that
person.
103. Burden of proof as to particular fact —The
burden of proof as to any particular fact lies on that
person who wishes the Court to believe in its existence,
unless it is provided by any law that the proof of that
fact shall lie on any particular person.”
23. Mr Abhijat, therefore, relied upon the decisions in Jagat Ram
Khullar and Anr. vs. Battu Mal, 1976 RCJ 94 and Shiv Dutt Singh
vs. Ram Dass, AIR 1980 All 280 wherein the statements on oath by
the addressees, denying the “tender and refusal” of a document was
held to be sufficient to rebut the presumption of service. The onus,
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according to the aforesaid decisions, shifted on the sender to establish
the actual “tender and refusal” by producing the postman concerned.
24. Mr Pravin Kumar, learned advocate appearing for the
plaintiff/respondent No.1 sought to defend the impugned order on the
ground that there is a presumption of service of a document if the
same is returned with a postal endorsement that the addressee refused
to accept the same. He further submits that such presumption is
rebuttable but the burden would be upon the person denying such
presumption. It was further submitted that neither the postman nor the
process server was summoned and the mere statement of the appellant
of not having been served cannot result in rescinding of an ex-parte
decree. It was further contended that no challenge has been put up
against order dated 07.07.2009 by which the appellant and defendant
Nos.1 & 3 were directed to be proceeded ex parte. Mr Pravin Kumar,
Advocate referred to Section 102 of the Indian Evidence Act, 1872
wherein it is clearly emphasized that the burden of proof in a suit or
proceeding lies on that person who would fail if no evidence at all
were given on either side. If no evidence is given with regard to
service of summons, the fact that the postman or the process server
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reported refusal/non acceptance of the service would have to be
accepted as correct.
25. We have given our anxious consideration over the rival factual
and legal submissions of the parties. We do find several infirmities
and lapses on the part of the process server especially with regard to
non observance of the requirements under Rule 17 and 18 of Order V
of CPC. Nonetheless in the absence of any evidence to establish nonservice
of summons at the instance of the appellant/defendant No.4,
we would have to, per force, accept the endorsement of the process
server and the postman as correct.
26. In Gujarat Electricity Board and Anr vs. Atmaram Sungomal
Poshani, (1989) 2 SCC 602, the Supreme Court, though dealing with
a service matter held as hereunder:-
8. There is presumption of service of a letter sent
under registered cover, is the same is returned back with
a postal endorsement that the addressee refused to
accept the same. No doubt the presumption is rebuttable
and it is open to the party concerned to place evidence
before the court to rebut the presumption by showing
that the address mentioned on the cover was incorrect or
that the postal authorities never tendered the registered
letter to him or that there was no occasion for him to
refuse him. The burden to rebut presumption lies on the
party, challenging the factum of service. In the instant
case respondent failed to discharge this burden as he
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failed to place material before the court to show that the
endorsement made by the postal authorities was wrong
and incorrect. Mere denial made by the respondent in
the circumstances of the case was not sufficient to rebut
the presumption relating to service of the registered
cover. We are, therefore, of the opinion that the letter
dated April 24, 1974 was served on the respondent and
he refused to accept the same. Consequently, the
service was complete and the view taken by the High
Court is incorrect.”
(Emphasis provided)
27. In the case of Basant Singh and Anr vs. Roman Catholic
Mission, 2002 (7) SCC 531, the Supreme Court again clarified as to
how the onus of proof would be discharged in a case under Order IX
Rule 13 CPC. It was clarified that the defendant would be required to
examine the postman, who would have been the material witness and
whose evidence would have bearing for proper adjudication of the
issue. Since in that case the defendant had failed to discharge the onus
cast upon him by the Statute, the ex parte decree was not set aside.
Para 11 of the aforesaid judgment is quite instructive:-
11. Once it is proved the summons were sent by
registered post to a correct and given address, the
defendants’ own conduct becomes important. Before the
Trial Court, the appellants were allowed to lead
evidence in support of their contentions. An order to
this effect was passed by the Trial Court on 11.1.1991.
The premises in question is occupied by two defendants
jointly-Hari Singh and Basant Singh. Hari Singh
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appeared and examined himself stating that he did not
receive the registered letter. However, the defendant
Basant Singh did not appear and no evidence
whatsoever, on his behalf, has been led to rebut the
presumption in regard to service of summons sent to
him under registered post with acknowledgment due.
His own conduct shows that the registered summons
had been duly served on him. As already noticed, Hari
Singh appeared and save and except the bald statement
that registered letter was not tendered to him, no
evidence whatsoever was led to rebut the presumption.
He could have examined the postman, who would have
been the material witness and whose evidence would
have bearing for proper adjudication. He has failed to
discharge the onus cast upon him by the Statute. This
apart, it is inherently improbable that the registered
summons were duly served on Basant Singh but not to
Hari Singh when they occupied the tenanted premises
jointly.”
(Emphasis provided)
28. Admittedly, the postman and process servers were neither asked
to be summoned nor produced or examined by the appellant/defendant
No.4.
29. A combined reading of Section 114 (illustration f) of the
Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897,
would lead one to notice the drift towards presumption of the
addressee having received the summons/letter sent by registered post.
The aforesaid presumption, no doubt is rebuttable but only on
evidence of “impeccable character”.
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30. The second proviso to Rule 13 of Order IX further clarifies that
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.
31. It is not the case of the appellant/defendant No.4 that wrong
address was given in the summons or that there was any collusion
between the plaintiff/respondent No.1 and the postman, process server
and the Local Commissioner for non service of summons on the
appellant. What has really been argued by the appellant all through is
that one endorsement of a postman/process server cannot form the
basis for deciding that she refused to accept the notice.
32. We find substance in the argument of the learned counsel for
the plaintiff/respondent No.1 that the appellant had the knowledge
about the proceedings as prior to the summons in the suit, notices were
attempted to be served on the appellant/defendant No.4 in compliance
of Order XXXIX Rule 3 CPC vide postal article dated 22.10.2008
which too was refused by the appellant/defendant No.4 (postal article
is Exh.PW-1/6).
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33. The report of the process server on 02.06.2009 (Exh.AW1/P3)
that one Usha Gupta opened the door and informed that the appellant
is not available makes it very clear that the appellant would surely
have the knowledge of the pendency of the suit as Usha Gupta,
another sister is also a defendant in the suit. What really catches the
attention of this Court is that consistently the appellant has stated that
she learnt about the pendency of the suit through Chitra Gupta one of
the defendants on 02.11.2011. It does not appear to reason that Chitra
Gupta who is also one of the defendants and who too has been
proceeded ex parte would come to Delhi to participate in the
proceedings of the Local Commissioner and would not inform the
appellant about the suit.
34. Though an objection has been raised on behalf of the
respondent No.1 about the registered Will dated 17.09.2001 not
having been proved within the period of limitation and the present
appeal being time barred, we are not inclined to look into those
aspects, as the appeal fails on other counts which have been stated
above.
35. There is no reason to interfere with the impugned order. The
present appeal is dismissed but without costs.
FAO(OS) 108/2016 Page 20 of 20
CM 11858/2016 & 16366/2016
1. In view of the appeal having been dismissed, the applications
have become infructuous.
2. The applications are disposed of accordingly.
ASHUTOSH KUMAR, J
BADAR DURREZ AHMED, J
OCTOBER 25, 2016
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