Archana Rastogi vs Vivek Rastogi

Anil Kumar, J.

IA No. 8007/2007 in CS (OS) No. 1710/2006

This is an application by defendant under Order IX Rule 7 read with Section 151 of CPC for setting aside the ex-parte order dated 7th May, 2007 passed against him. The applicant/defendant contended that he is working with M/s. W.S. Global Services Pvt. Ltd. which has its registered office at Mumbai. According to the applicant, he was posted at Gurgaon prior to 1st August, 2006 where after he was transferred to Pune (Maharashtra) and he is working and residing at Pune. The applicant contended that by order dated 29th September, 2006, the summons and notices in the suit and the applications filed by his wife, plaintiff, were issued and thereafter on 13th November, 2006 when the summons and notices were again issued, neither applicant nor any member of his family were residing at Gurgaon. According to the defendant, at all relevant times, the plaintiff/non-applicant knew that the defendant has been transferred to and was working and residing at Pune and was not working and residing at Gurgaon. According to the applicant, he never avoided to accept service of summons and notice issued by this Court.

According to the applicant, publication of the summon and notice of the suit in "Tribune" is not a service as "Tribune" newspaper in which the summon and notice were published does not have circulation in Maharashtra nor he received the copy of the News paper. The applicant has also denied service of notice by affixation. Regarding the suit pending in the court at Gurgaon for partition and permanent injunction filed by the plaintiff, applicant contended that he had put his first appearance on 1st June, 2007 before the Civil Judge, Senior Division, Gurgaon, Haryana, and on that date he came to know about the filing of the suit by the plaintiff.

After coming to know about the pendency of the suit, he engaged the services of a local advocate and as the courts remained closed from 1st June, 2007 to 1st July, 2007, therefore, the present application dated 18th July, 2007 was filed on 18th July, 2007 for setting aside the ex parte order passed against him.

The applicant also contended that he had nothing to gain and had no intention of keeping away from the proceedings in the case and the application for setting aside the ex-parte order is made bonafide.

The application is opposed by the plaintiff/non-applicant contending inter alia that the application is a gross abuse of process of law and the applicant has not come to the Court with clean hand and is trying to mislead this Court. According to the plaintiff, the defendant/applicant was trying deliberately to avoid acceptance of summons and he has been duly served by substituted service by publication and by affixation.

The non-applicant contended that the notices were sent by registered A.D. post as well as by other means on several dates which the defendant avoided to accept. According to the plaintiff summons were sent pursuant to order dated 29th September, 2006 returnable for 13th November, 2006, however, the registered AD card did not come back and hence the said service is valid under Order V Rule 9 sub-rule 3 of CPC as registered AD sent was not received back and after a period of 30 days it is valid service. According to the non-applicant, summons were sent by an abundant precaution on 13th November, 2006 for 20th February, 2007 and as the registered AD again did not come back, the same is also a valid service in law in view of the said provision. According to the plaintiff/non-applicant, fresh summons were again ordered on 20th February, 2007 by pasting/substituted service and the pasting was effected on 14th March, 2007 at the office of the defendant where he is a Senior Vice President.

The non-applicant has also contested the application on the ground that the respondent continues to be employed in WNS and has deliberately shifted to Pune to be with his lady friend Priya Mishra. It has also been contended that on 6th March, 2007 it was tacitly accepted by the defendant''s office that he was still working at WNS, Gurgaon, because office report was that he has gone out and reception did not know as to when he will come back.

The plaintiff has also relied on a email dated 23rd May, 2007 addressed to the counsel for the plaintiff stipulating that the defendant want to support the plaintiff and therefore it is best that defendant and the counsel start the High Court proceedings. The stipulation made in the alleged email addressed to the counsel for the plaintiff is as under:-

Hi Geeta,

Hope this finds you well. I am okay but not too happy as I think of how things have shaped up. I have been hesitating to not have positive response to the offer you last made for a mutual compromise. Hence, unless you have some other MO we need to go the legal way.

I look forward to supporting Archana and hence it is best we start the High Court proceedings. My office or I have not re-summoned. Could you pleas have them sent to me on the address given below. I will accept them asap and Arun/I will on this case.

Reliance has also been placed on other email dated 28th May, 2007 sent by the counsel for the plaintiff to the defendant.

I have heard the learned counsel for the parties in detail. The notices were sent to the defendant pursuant to order dated 29th September, 2006 for 13th November, 2006. Admittedly, the notices and summons sent for 13th November, 2006 were not received back. Despite the notices sent by registered post and AD cards were not received back even after thirty days, this Court had not proceeded ex parte after 30 days of sending of summons and notices by registered post under Order V rule 9 sub-Rule 3 of CPC and had ordered fresh notice on 13th November, 2006.

On 13th November, 2006, fresh summons and notices were issued for 20th February, 2007. The summons and notices sent pursuant to the order dated 13th November, 2006 by registered post were also not received back, however, on 20th February, 2007, the Court had not proceeded ex parte against the defendant under Order V Rule 9 sub-Rule 3 of CPC on the ground that the notices sent by registered post had not been received back after a period of 30 days.

Though the reports about these registered articles sent could be obtained from the concerned post office, however, no such report was obtained, rather an application under Order V rule 20 for substituted service was filed which was allowed and the defendant was ordered to be served by substituted service by publication in newspaper Tribune; as well as affixation at the office address of the defendant by order dated 20th February, 2007.

Since the court had not proceeded ex parte against the defendant under Order V rule 9 sub-Rule 3 of CPC on the basis of notice sent pursuant to order dated 29th September, 2006 and 13th November, 2006; the plaintiff cannot contend that the notices were deemed to be served now and the ex-parte order is not liable to be set aside. Even after filing of application by the defendant for setting aside the ex parte order, though the plaintiff could have obtained the report from the concerned post office about the service of summons sent pursuant to order dated 29th September, 2006 and 13th November, 2006, even though the notices were sent by this Court, therefore on the alleged ground it cannot be inferred that the defendant had knowledge about the pendency of the case and notices sent by registered post had been served on the defendant. The summons had been ordered to be served by all modes prescribed, however, the summons were sent only by registered post and not by ordinary process through the process server, through courier and through e-mail.

The substituted service has been done by publication in Tribune''. The defendant/applicant has contended that the Tribune'' does not have any circulation in Maharashtra as he had been transferred to Pune and this fact was within the knowledge of the plaintiff/non-applicant. The allegation of the plaintiff is that defendant has shifted to Pune in order to be with his friend, Priya Mishra. In the circumstance, therefore, it cannot be denied that the publication of the notice and summons in Tribune'' which does not have circulation in Maharashtra will not be a sufficient service. In any case, the non-applicant/plaintiff has failed to show that Tribune'' has circulation in Maharashtra.

A division Bench of this Court in Ganga Ram Agarwal Vs. National Small Industries Corporation Ltd., had held that if the substituted service is carried out by publication in the News paper which does not have circulation in the area where the defendant resides, then substituted service carried out by publication will not be effective service.

Order V of the Code relates to service of summons. Rule 12 of the Code contemplates that wherever it is practicable, service should be made on the person concerned unless the person has an agent empowered to accept service. Therefore the attempt should be made to serve notice personally on the party unless there is an agent empowered to accept service. Rules 13 and 14 of the Code stipulates that the summons can be served on agent in certain circumstances. Order V, Rule 15 of the Code empowers the process server to serve summons on any adult male member of the family, if the party is found to be absent when service of summons is sought to be effected on him at his residence and there is no likelihood of the party being found at the residence within reasonable time and he has no agent empowered to accept service. Explanation to the said Rules clarifies that a servant is not regarded as a member of the family within the meaning of Order V, Rule 15 of the Code. However, while effecting service under Order V, Rule 15 of the Code, process server has to record a specific finding that the party is absent from his residence and there is no likelihood of the party being found at the residence within reasonable time. The service can be effected only on an adult member of the family of the party. Process server has therefore, to take care and caution on noting down the name and details of the adult member of the family. In the present case, there was no attempt to send the summons through the process server though the Court had ordered so. Order V, Rule 16 of the Code requires that a person on whom copy of the summons as been tendered or delivered shall affix his signatures on the copy. In this case there is nothing to show that the defendant was tendered summons and he had affixed his signatures on the summons. Order V, Rule 17 of the Code stipulates that where a party or his agent or any adult member of the family refuses to sign/acknowledge or where the process server after using all due and reasonable diligence is unable to find the party as he is absent and there is no likelihood of the party being found at the residence within reasonable time, the process server shall affix a copy of the summon on the outer door or some other conspicuous part of the house where the party ordinarily resides or carries on business or works. The process server thereafter is required to file a report containing necessary details and circumstances necessitating service by affixation. Order V, Rule 19 of the Code requires that where summons has returned under Rule 17 without affidavit of the process server, the process server shall be examined on oath by the Court and on such further enquiry the Court can declare that the summon has been duly served. Where a process server has furnished an affidavit, the Court still has power to examine the process server and conduct such enquiry and thereafter decide whether the summon is duly served.

The notice alleged to be affixed on 13th March, 2007 for 23rd April, 2007 cannot be a proper service in accordance with rules. The report of the Bailiff is that at the office one clerk read the summons and talked on mobile phone and said that the respondent has gone and consequently the summons were affixed at office. The report of Bailiff is not witnessed by any independent person nor does it gives the name of the alleged clerk to whom the summon was tendered nor the place where he has affixed the summons. The Bailiff has alleged that the summons were affixed, however, it is not mentioned whether the summons were affixed inside the office or outside the office. The affidavit filed along with the alleged report of the Bailiff is also of Shri Hira Prasad, clerk of the counsel for the plaintiff, which only stipulates that the dasti notices were taken and handed over to Bailiff in Gurgaon. Consequently, on the basis of such a report and the affidavit of the clerk of the counsel which does not even contend that all the facts stated in the affidavit are true to his knowledge, it cannot be inferred that there is a valid service on the defendant.

The plaintiff has also relied on printed copy of the email dated 23rd May, 2007 sent to the counsel for the plaintiff. The email was allegedly addressed to the counsel for the plaintiff and nothing has been filed in compliance with the provisions of Section 65(B) of the Evidence Act stipulating about admissibility of electronic record. Consequently, on the basis of alleged emails, the inference as has been sought to be drawn on behalf of plaintiff cannot be drawn. Even if, the alleged email is considered, it only reflects defendant''s admission to support the plaintiff and a request to the plaintiff counsel to start the High Court proceedings. It does not show that defendant had been aware of the pendency of the High Court proceedings which according to defendant came to his knowledge on or about 1st June, 2007 in a suit filed in the Court at Gurgaon. For the same reason, the alleged email dated 28th May, 2007 alleged to have been sent by the counsel for the plaintiff to the defendant cannot be relied on. In any case, the alleged knowledge of the pendency of the case cannot be termed as a service of summons and notices on the defendant.

After amendment to the Code of Civil Procedure, a defendant has to file the written statement within 30 days from the date of service. Merely on the basis of the knowledge of the pendency of the case, the defendant is not expected to file the written statement within 30 days and consequently, in my opinion, mere knowledge of the pendency of the case will not be a deemed service so as to take action against such a party.

Consequently in the above facts and circumstances, it is apparent that the defendant had not been served. The plaintiff and defendant are wife and husband. Not giving adequate opportunity to any of the parties can result in injustice. At times it is difficult to prove and establish the facts, allegations and counter allegations without going deeper into the matter and giving opportunity to the parties to examine witnesses and cross-examine them. Sometimes it can become difficult for the Court to decide the question of "sufficient cause" conclusively as required under the provisions of Order IX of the Code without recording evidence, thus delaying the matter and prolonging the litigation. In such circumstances on weighing and balancing the equities on both sides and with a view to expedite the progress of the case and not to stall the same by asking the parties to lead evidence, the ex-parte order can be set aside subject to payment of Costs also. The case is still at the initial stage and if the e-mail dated 23rd May, 2007 relied on by the plaintiff is considered, it reflects the willingness of the defendant to support the plaintiff. In the totality of circumstances, therefore, there is sufficient reason for setting aside the ex-parte order passed against the defendant subject to the cost of Rs. 10,000 payable by the defendant to the plaintiff. Consequently, the application of the defendant is allowed and the ex-parte order dated 7th May, 2007 proceeding ex-parte against the defendant is set aside subject to a cost of Rs. 10,000/- payable by the defendant to the plaintiff.

CS (OS) No. 1710/2006

A complete set of paper book be given to the counsel for the defendant within one week. Written statement be filed within 30 days. Replication, if any, be filed within four weeks thereafter.

Parties are also directed to file their original documents or certified copies thereof within ten weeks.

List before the Joint Registrar for admission/denial and marking of documents on 30.11.2007.

List before the Court for framing of the issues on 15.2.2008.

IA No. 1511/2007

Copy of the application be given to the counsel for the defendant who seeks time to file the reply. Reply be filed within four weeks. Rejoinder, if any, before the next date of hearing.

List on 2.11.2007.

Parties are also directed to be present on the next date of hearing.