Gurnam Singh and Another vs Kulbir Singh

Arun Madan, J.

(1) Learned Counsel for the petitioners submits that the impugned order dated 7th December, 1993 passed by the learned Addl. District Judge is contrary to the provisions of Order 37 Rule 3(4) of the CPC since summons for judgment issued against defendants by the Trial Court were served on Harpreet Kaur wife of Paramjit Singh, defendant No. 2 in the suit on 2.6.1992 who inadvertently kept the summons for judgment in her almirah and forgot to deliver the same to the defendants as she was not well being in her advanced stage of pregnancy. It is further contended by learned Counsel for the petitioners that on 22.8.1992 when Smt. Harpreet Kaur wife of defendant No. 2 was packing her clothes for going to her mother''s house, she found the said papers and handed over the summons for judgment to defendant No. I, who in turn contacted his Counsel on 23.8.1992 and his Counsel inspected the file and moved an application before the Trial Court seeking leave to contest the suit Along with an application for condensation of delay. Learned Counsel for the petitioners submits that since the application for condensation of delay had been dismissed by the learned Additional District Judge, Delhi, the application for leave to defend being hopelessly time barred and the same was also dismissed as time barred. The suit was decreed for a sum of Rs. 2,70,100.00 with costs and interest(c) 12% p.a. pendente lite and future till the realisation of the decretal amount. This is the order which has been challenged in the present revision petition.

(2) Admittedly, the petitioners/defendants in the suit had filed their appearance before the Trial Court within the statutory period of ten days from the date of service. During the course of hearing, learned Counsel for the petitioner has placed reliance on the judgment of this Court in the case of Amar Singh Vs. Santi Devi, , wherein the learned Judge has observed, "In my view, this approach is not correct. An irregularity in the service of summons Which results in passing of an ex-parte eviction decree affecting the tenancy right of a person is a very serious matter". This Court in The Punjab Oil Expellers Co., Ghaziabad Vs. Madan Lal Nanda and Sons and Others, clearly laid down that reasonable efforts are required to be made to have a party served personally. In the present case, I find that no evidence was led to ascertain whether any effort was made to have the petitioner served personally."

(3) Learned Counsel for the respondent has argued that provisions of Order 5 Rule 15 CPC are applicable since service of summons is effected if the summons are served on any adult member of the family against whom the summons are ordered to be issued and that service of summons is deemed to have been served.

(4) I have heard learned Counsel for the parties. In my view, under the circumstances of the case, reasonable efforts should have been made to have a party served personally which has not been done in the present case. In the present case, I find that defendants have not been served with summons for judgment personally in accordance with the provisions of Order 37 Rule 3(4) CPC . since the service of summons for judgment was effected through the wife of brother of petitioner/ defendant No. I in the suit which is not a proper service.

(5) In view of the above, the petition is allowed, the order and decree dated 7th December, 1993 passed by the learned Additional District Judge, Delhi against the defendants are set aside. The Trial Court is directed to proceed in the matter afresh by issuing fresh summons for judgment to the defendants in the suit in accordance with law. There will be no order as to costs. Parties are directed to appear before the Trial Court on 24th January, 1994.