Thursday, 31 October 2019

Whether exparte decree can be set aside if summons was pasted without obtaining signature of witnesses?

More so, it is also clear from the report of Process Server that on the date concerned petitioner was not at home and the notice was made 'chaspa' on the wall of house of the petitioner which do not carry any signature of the witnesses, thus, suffers from infirmity in the procedure as laid down in Order 9 Rule 7 CPC and also the precedent law laid down by this Court in Rameshwar Chaudhary (supra).

8. In light of aforesaid submission, the writ petition is allowed. The impugned order dated 02.11.2018 (Annex. 6) passed by learned ADJ No. 2, Nagaur in Case No. 4/2015 (Civil Case No. 6/2015) is quashed and set aside. The application of the petitioner filed under Order 9 Rule 7 CPC is allowed.

IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 1977/2019

Decided On: 22.05.2019

 Gram Panchayat Bhakrod Vs.  Sriramratan Construction and Ors.

Hon'ble Judges/Coram:
Pushpendra Singh Bhati, J.

Citation: AIR 2019(NOC) 663 Raj


1. The petitioner has preferred this writ petition for the following reliefs:-

"by an appropriate writ, order or direction, the impugned orders dated 02.11.18 (Annex. 6) in case No. 4/2015 (Civil Case No. 6/2015) before the ADJ No. 2, Nagpur may kindly be quashed and set aside."
2. The respondent No. 1/plaintiff filed a suit for recovery of Rs. 43,40,000/- alleging that they had supplied some material for construction work to Gram Panchayat, Bhakrod, payment of which has not been made.

3. The limited bone of contention in the present case is that the petitioner, who is Sarpanch of Gram Panchayat concerned, moved an application under Order 9 Rule 7 CPC for setting aside ex-parte proceedings initiated against him on count of the fact that proper service was not made against him.

4. The learned court below has dismissed the application on the count that service was complete on Secretary Panchayat and due process was also followed while completing the service upon the petitioner. Counsel for the petitioner has shown Annex. 2, which is a report made upon the summons, wherein the Process Server has remarked that "the petitioner was not at home and has gone out whereas the ladies in the house have refused to take the summons". However, the Process Server has admitted that there was no witness to notice made 'chaspa' on the house of the Sarpanch. Counsel for the petitioner has relied upon the judgment of this Court (Jaipur Bench) in Rameshwar Chaudhary Vs. State of Rajasthan & Ors., reported in 2013 (1) DNJ (Raj) page 351; relevant portion whereof read as follows:

"6. A look at the report of process server on the notice issued to the petitioner under Section 86 of the 1988 Act would indicate that the said notice is stated to have been affixed at the residence of the petitioner not served personally on him. Service on the petitioner however can not be accepted in view of the absence of the name and address of witnesses in whose presence the notice was allegedly affixed on the residence of the petitioner Further another aspect of the matter need to be noted. The address of the petitioner has been indicated in the notice to be House No. C-388, Road No. 4, when in fact the correct address of the petitioner is House No. C-388, Road No. 14. As stated above, the affixation of the notice dated 15-10-2009 purportedly at the residence of the petitioner has not been supported by any witness. On principles analogous to the provisions of Order 5 Rule 17 of the Civil Procedure Code, in my considered view service by way of affixation of notice should have been supported by two witnesses, whose names and address ought to be recorded/disclosed by the Process Server on his report. Admittedly this comfort of notice having been properly served on the petitioner by way of affixation at his residence is not available to the satisfaction of the court."
5. Counsel for the petitioner submits that service itself was not properly made and admittedly the Process Server has himself remarked that there was no witness to the notice made 'chaspa' on the house of Sarpanch, thus, the service was incomplete, hence, the application under Order 9 Rule 7 CPC ought to be allowed. Counsel for the petitioner submits that summons were served upon respondent No. 2 Dinesh Mathur i.e. Secretary Gram Panchayat but the Panchayat itself has lodged an FIR against him for gross abuse of his official position and embezzlement and such FIR is available on record as Annex. 9 dated 28.7.2015.

6. Counsel for the respondent submits that since the Panchayat was a party and was being represented by Secretary, as such, even if service was not complete upon the Sarpanch, then also the Gram Panchayat was responsible to defend itself and the lawyer pleading no instruction on behalf of Secretary (proforma respondent No. 2) and further the proceedings have travelled from the 2015 to 2019, thus, the petitioner cannot be permitted to become a party to reverse the proceedings.

7. After hearing learned counsel for the parties, this Court finds that the petitioner is a public body and in case a decree is granted in favour of respondent No. 1, then amount of Rs. 43,40,000/- shall be payable to respondent No. 1 and giving away said claimed right without contest on merits shall be prejudicial to public exchequer and would not be appropriate in present facts and circumstances. Hon'ble Supreme Court in number of judgments has condoned the limitation where public officials have failed to protect the public exchequer or public cause. More so, it is also clear from the report of Process Server that on the date concerned petitioner was not at home and the notice was made 'chaspa' on the wall of house of the petitioner which do not carry any signature of the witnesses, thus, suffers from infirmity in the procedure as laid down in Order 9 Rule 7 CPC and also the precedent law laid down by this Court in Rameshwar Chaudhary (supra).

8. In light of aforesaid submission, the writ petition is allowed. The impugned order dated 02.11.2018 (Annex. 6) passed by learned ADJ No. 2, Nagaur in Case No. 4/2015 (Civil Case No. 6/2015) is quashed and set aside. The application of the petitioner filed under Order 9 Rule 7 CPC is allowed. The learned court below shall proceed strictly in accordance with law. However, the learned trial court shall make all endeavour to decide the suit expeditiously.


Print Page

No comments:

Post a comment