Whether it is mandatory to affix summons to outer door of defendant's house if he refuses sign on acknowledgment?

When the Bailiff had not affixed copy of summons to the outdoor of the house of defendant after the alleged refusal by him to sign the acknowledgment, then such casual verification by the officer of the Court has no meaning at all. Both the Courts below have erred in holding that the defendant was duly served with summons. In fact, Sushil Kumar's (supra) decision was cited before the learned First Appellate Court, but it was not relied on the ground that in this case defendant had accepted the copies of the summons, but refused to sign the acknowledgment. It appears that learned First Appellate Court failed to consider the wordings of Rule 16 and 17 of O. 5 of the Code. Rule 16 imposes a duty on the process server to obtain signature of the person on whom the summons is being served on the copy of the summons with him. Rule 17 deals with procedure when such person refuses to accept service, etc. It contemplates the situation that defendant has refused to sign the acknowledgement, there is no further bifurcation about refusal before or after acceptance of summons. Therefore, even in case of acceptance of copies of summons, but refusal to sign the acknowledgment by the defendant, the process server was bound to affix a copy of the summons on the outer door of the house of the defendant. There was no proper service of summons in this case. Both the Courts have wrongly accepted the said service as proper service.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 0604 of 2016

Decided On: 05.08.2019

Madan Mohan Gupta Vs.  Ramavati Ramesh Chauvan

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2020(1) MHLJ 951

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Precaution to be taken by court while granting police aid for execution of decree

 In the said decision it has been further held that an order of Police help vitally effects all persons in actual possession of the property. With the powerful backing of such an order all persons in actual possession whether they are bound by the decree or not are likely to be evicted from the property summarily, the Court should therefore proceed with great caution in granting Police help. The paragraph 14 of the said reported decision being relevant is quoted below.

"(14) An order for police help vitally effects all persons in actual possession of the property. With the powerful backing of such an order all persons in actual possession whether they are bound by the decree or not are likely to be evicted brevi manu from the property summarily. Relief by way of restoration of possession obtained by an application under Order 21, Rule 100 is poor consolation for a person who is unlawfully dispossessed. The Court should, therefore, proceed with great caution in granting police help. The Court should not hesitate to give such aid if execution of its process is unlawfully obstructed and its process cannot be executed without such aid: But where there is a bona fide claim by an occupant that he is not bound by the decree and as such is entitled to resist eviction in execution of the decree the Court may and should decline to give such aid until his claim is negative in appropriate proceedings; See Debendra Nath v. Parul Bala, MANU/WB/0082/1953 : 88 Cat LJ 105 at pp. 106, 107 : (AIR 1953 Cal 233 at p. 233) (L) and Sew Sankar Lal v. Bejoy Krishna Dutta, MANU/WB/0074/1953 : 57 Cal WN 65 at p. 66: (AIR 1953 Cal 218 at pp. 218, 219) (M). The claimant is vitally affected by an order for Police help and is entitled to be heard on an application praying for such help. The Court has unfettered discretion and ample power to do justice. The Court may examine any person it thinks fit and hear him. If necessary, the Court may direct notice to all persons in actual possession by advertisement or otherwise. The decree holder is under a duty to disclose full facts. An order for police help obtained improperly or by suppression of material facts is liable to be set aside. 

IN THE HIGH COURT OF CALCUTTA

C.O. No. 199 of 2018

Decided On: 06.09.2018

 Reba Mondal Vs.  Sandhya Paul and Ors.

Hon'ble Judges/Coram:

Biswajit Basu, J.

Citation: AIR 2019(NOC)61 Cal

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Whether bailiff report is public document?

 But, if the report of the bailiff was to be treated as a
public document, there was nothing for the respondent no.4 to
do, but to produce a certified copy of the same and then claim
that he had proved his stand. This would be contrary to the
requirement of Section 101 of the aforesaid Act, which reads as
follows:-
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.
18. Thus, it becomes clear that the burden to prove

clearly was on the respondent no.4 in the facts of the present
case. Only the contents of the summons issued by the Court,
consisting of name of the Court, name of the parties, seal of
the Court and the returnable date stated in the summons could
be said to be a public document. The report written by the
bailiff on the reverse of the said document could certainly not
be said to be a public document under Section 74 of the said
Act. Yet, the trial Court passed the order dated 26.08.2015
allowing the production of the documents, including the bailiff
report, by the respondent no.4 and passed the impugned order
dated 26.08.2015 below Exh.40 holding the said documents to
be directly admissible in evidence as public documents and
marking them as exhibits. The trial Court also erred in passing
the impugned order dated 21.07.2016 below Exh.44 rejecting
the application of the petitioner for de-exhibiting the said
documents including the bailiff report. It is also surprising that
the trial Court did not even call for the say/response of the
petitioner while passing the order, whereby production of the
documents was allowed and while passing impugned order
dated 26.08.2015, whereby the documents including the said
bailiff report, were treated as public documents and accepted.
This was clearly erroneous, thereby rendering the impugned
orders unsustainable and liable to be quashed and set aside.

19. In the light of the above, the present writ petition is
allowed and the impugned orders are quashed and set aside.
The application Exh.44 is allowed. It is held that the bailiff
report sought to be placed on record and exhibited as public
document cannot be treated as a public document and that it
will have to be proved by respondent no.4 in accordance with
law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No. 79 of 2017

Sushilkumar Mandanlal Ganediwal, Vs  Vijaykumar Mandanlal Ganediwal,


CORAM : MANISH PITALE, J.

DATED: JANUARY 31,2019
Citation: 2019(3) MHLJ 721,AIR 2019 BOM 201

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Precaution to be taken by court prior to passing of exparte order against other party

Harmonious construction of Rules 17 and 19 of Order V of the Code
of Civil Procedure goes to show that acceptance of report of the service of the
summons is a serious and solemn act and not merely an empty formality. Object to
serve summons on the respondent is to enable him to know about institution of the
proceedings against him and enable him to resist the said proceeding filed against
him. Law of procedure is framed in such a manner that principle of natural justice
is scrupulously followed. The basic requirement of this rule is that the decision
should not be reached behind back of the affected party and such party should not
be precluded from participating in the proceeding. Therefore, it becomes the
prime duty of the Court concerned to see that all procedural requirements are duly
adhered to prior to proceeding ex-parte against the concerned party to the
litigation.
:Proof of due service of summons is essential condition for proceeding
ex parte against the concern respondent. If record of case in hand is perused, it
appears that though the Process Serving Officer / Bailiff has submitted his report
stating that, respondent wife has refused to accept the summons in the court
premises at 10.45 a.m. of 17.11.2011, he has not filed the same 
alongwith his affidavit. Another endorsement on summons Exh.No.5 shows that, the Process
Serving Officer has made efforts to serve the original respondent - wife at given
address i.e. N-12, B-Sector, 48/7, T.V. Center, HUDCO, Aurangabad, however
said report also not accompanied with an affidavit. Order passed below Exh.No.1
on 17.11.2011 by which the learned Judge, Family Court proceeded ex parte
against the respondent – wife, does not shows that mandatory provisions as
envisaged by Rules 17 and 19 of the Code of Civil Procedure were complied with
by the learned Judge of Family Court. There is no record to show that the Process
Serving Officer / Bailiff was examined by the learned Judge Family Court,
Aurangabad prior to proceeding ex parte against the respondent wife. As report of
the Process Serving Officer / Bailiff at Exhibit 5 relied upon by the learned Judge
was to the effect that original respondent / wife has refused to accept the summons
when it was sought to be served on her, as per mandate of Rule 19 of Order V of
the Code of Civil Procedure, it was incumbent on the part of the learned Judge to
examine said Process Serving Officer / Bailiff on oath or to cause him to be so
examined by another Court touching his proceedings. Obviously, the intention of
such examination is to see that chances of a false endorsement of such attempt to
serve the summons and refusal thereof are minimized. If the Process Serving
Officer / Bailiff is examined on oath and during such examination, it is found that
the statement so made by him is false, then such Process Serving Officer / Bailiff
makes himself liable for prosecution. Thus, there is inbuilt guard against false
report regarding service of summons. The learned Judge of the Family Court has
not taken precaution to adhere to the provisions of Rule 19 of the Code of Civil
Procedure while passing order below Exhibit 1 regarding service of summons on
original respondent / wife. In fact, it is seen that the said order below Exhibit 1

was passed in a casual manner not even declaring that the summons has been duly
served on respondent/wife. There seems to be no application of mind to this aspect
by the learned Judge of the Family Court at Aurangabad. At least the order below
Exh.No.1 does not show such application of mind.
Signature of the original petitioner is appearing on summons at
Exh.No. 5 as if to show that refusal to accept the summons by original respondent
– wife is in his presence. Report on separate sheet given on 17.11.2011 does not
bear such signature. Rule 19 of the Family Court Rules, 1988, shows that if
bailiff attempted to serve the summons and person refused to accept it then the
person who accompanies the Bailiff for the purpose of identification, at the time of
service is also required to file his affidavit. In the case in hand, such affidavit of
the original petitioner is also missing.
Thus even provisions of Rule 17 do not
seem to be complied with. For all these reasons, it becomes crystal clear that the
learned Judge, Family court erroneously proceeded ex parte against the
Respondent-wife and, therefore, impugned judgment and decree of dissolution of
marriage passed by the learned Judge of Family Court, Aurangabad dated 10 th
February, 2012 in Petition No.A-311/2011 cannot be sustained. It needs to be set
aside for non-compliance of the Rules mentioned supra, so also the same is
violating the principles of natural justice as no proper opportunity of hearing was
accorded to the Respondent-wife. 

FAMILY COURT APPEAL NO.13 OF 2013.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CIVIL APPELLATE JURISDICTION.
Deepali w/o Pratap Sonawane

V
Pratap s/o Irappa Sonawane

CORAM : B.P. Dharmadhikari &
       A.M. Badar, JJ.
DATE : 22nd December, 2014.
Citation;2015(3) ALLMR341

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