Gurprit Singh vs Ranjit Kaur and others

This application has been filed by respondent u/s 151, CPC for recalling the ex parte order dated 13-2-1996 passed by this Court. In this application it has been stated that the notice of the revision petition was never served upon respondent No. 1 (applicant) who is the illiterate widow lady and is the only contesting respondent.

Notice of this application was issued to the petitioner/non-applicant. Reply to this application by way of affidavit has been filed on behalf of the non-applicant. In para-2 of the reply, it has been stated that applicant Ranjit Kaur was duly served in the revision petition as she refused to accept the summons and avoided the service.

Mr. Sanghi, learned Counsel appearing on behalf of the applicant submitted that as per report of the process-server, the applicant was avoiding service and as such the applicant should have been served in terms of Order 5, Rule 20 and she could not have been proceeded ex parte.

Mr. Puma, learned Counsel appearing on behalf of the non-applicant, however, submits that since the applicant had come to know about the summons and thereafter she tried to avoid the same, it, amounted to service on the applicant and as such the application was without any merit and should be dismissed. In support of his submission learned Counsel placed reliance on a judgment of Nagpur High Court in Imdad Hussain v. Pareshwar AIR 1916 Nag 29.

From the records, I find that notice of the revision petition was issued to the respondent on 13-9-1995 for 4-10-1995. Since the notice has not been received back, fresh notices were directed lo be issued on 5-10-1995 for 21-11-1995. On 21-11-1995 fresh notices were again directed to be issued to the respondent for 15-1-1996. Thereafter the summons sent lo the respondent/ applicant were received back with the report of the Process Server that after coming to know about the summons, the respondent did not come out of the house and disappeared and as such she was trying toavoid the service. From the report of the Process Server, it is quite clear that the respondent/applicant was avoiding service and as such the provisions of Order 5, Rule 20, CPC shall apply in the present case, since it is not the report of the Process Server that the respondent had refused to acknowledge the summons, provisions of Order 5, Rule 17, CPC shall not apply to the facts of the present case.

Without compliance of provisions of Order 5, Rule 20, the applicant could not be deemed to have been served and as such could not have been proceeded against ex parte.

The judgment in the case of Imdad Hussain AIR 1916 Nag 29 (supra) is of no assistance to the non-applicant as in that case, a copy of the summons was tendered to the defendant and after the summons were tendered, the defendant instead of accepting it went and shut himself in his house. The facts of the present case as stated earlier are different to the facts of that case.

For the reasons recorded herein above, the application is allowed, the ex parte order dated 13-2-1996 is recalled and the revision petition 3307 of 1995 is ordered to be brought to its original position.

With this order the application stands disposed of.

Application allowed.