# Shiv Charan Singh v. The XIth A.D.J., Aligarh and others

- **Citation:** (2005) 1 ILRA 334
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-03-10
- **Case number:** Civil Misc. Writ Petition No. 37155 of 1998
- **Bench:** Mukteshwar Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-charan-singh-v-the-xith-a-d-j-aligarh-and-others-40447
- **Pages:** 6

## Headnote

Code of Civil Procedure- Order 5 to 19-A
readwith o. 9 rule 13 C.P.C.- Ex parte
order suit for eviction-the date on which
the plaint presented about from service
through process server-Regd. Notices
also sent- without order of Court-
process server reported refusal-Regd.
Letter returned back without service
creates
great
doubt-issuing
process
through Regd. Post without order of
court is no service-no declaration by
Court about service-application under
order 9 rule 13-held maintainable-ex
parte order set a side with certain
direction issued to the judge, small
cause.

Held- Para 11 and 16

It further appears that the application
for amendment of the plaint was moved
and as such, a fresh summons was
ordered to be issued. On 1.2.1995, none
appeared on behalf of the defendant
despite service of summons. Again on
4.4.1995, the court passed order for
proceedings exparte and ultimately on
5.5.1995, the suit was decreed exparte.

Unless there is such declaration, the
summons cannot be said to have been
served under Rule 19-A. In the present
case, it does not appear from the record
that there was any such declaration
made under sub rule (2) read with the
proviso thereunder. I am, therefore, of
the clear opinion that there is nothing on
record to arrive at the conclusion that
the summons was served upon the
petitioner as alleged by the respondent.
Case law discussed:
2004 ALJ- 3852
1991 (2) ARC-305
1997 (i) ARC 328
1993 (i) ARC 21
AIR 1979 Raj-108

## Text

334 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 10.3.2005

BEFORE
THE HON'BLE MUKTESHWAR PRASAD, J.

Civil Misc. Writ Petition No. 37155 of 1998

Shiv Charan Singh

...Petitioner
Versus
The
XIth
Additional
District
Judge,
Aligarh and others
...Respondents

Counsel for the Petitioner:
Sri Vipin Saxena

Counsel for the Respondents:
Sri J.J. Munir, S.C.

Code of Civil Procedure- Order 5 to 19-A
readwith o. 9 rule 13 C.P.C.- Ex parte
order suit for eviction-the date on which
the plaint presented about from service
through process server-Regd. Notices
also sent- without order of Court-
process server reported refusal-Regd.
Letter returned back without service
creates
great
doubt-issuing
process
through Regd. Post without order of
court is no service-no declaration by
Court about service-application under
order 9 rule 13-held maintainable-ex
parte order set a side with certain
direction issued to the judge, small
cause.

Held- Para 11 and 16

It further appears that the application
for amendment of the plaint was moved
and as such, a fresh summons was
ordered to be issued. On 1.2.1995, none
appeared on behalf of the defendant
despite service of summons. Again on
4.4.1995, the court passed order for
proceedings exparte and ultimately on
5.5.1995, the suit was decreed exparte.

Unless there is such declaration, the
summons cannot be said to have been
served under Rule 19-A. In the present
case, it does not appear from the record
that there was any such declaration
made under sub rule (2) read with the
proviso thereunder. I am, therefore, of
the clear opinion that there is nothing on
record to arrive at the conclusion that
the summons was served upon the
petitioner as alleged by the respondent.
Case law discussed:
2004 ALJ- 3852
1991 (2) ARC-305
1997 (i) ARC 328
1993 (i) ARC 21
AIR 1979 Raj-108

(Delivered by Hon'ble Mukteshwar Prasad, J.)

1. By means of this petition under
Article 226 of the Constitution of India by
tenant, the petitioner has prayed for
quashing the judgment and order-dated
5.5.1995
and
22.51998
passed
by
respondent no. 2 and 2.11.1998 passed by
the respondent no. 1 (Annexures 2,8 and 9
to the writ petition) respectively.

2. Counter and rejoinder affidavits
have been exchanged between the parties
and are on record. With the consent of
learned counsel for the parties, the
petition is being disposed of finally at this
stage.

3. It appears that S.C.C. Suit No. 99
of 1994 was filed by the land lord for
evicting the tenant-petitioner from house
no. 1/27, Indra Puri, Chharra Adda,
Aligarh and for recovery of arrears of rent
and damages in the Court of Judge Small
Cause. The suit was filed on 9.8.1994 and
the Judge directed to issue summons to
tenant fixing on 8.10.1994 for final
hearing. On 10.10.1994, summons was
received back unserved and court fixed
25.10.1994, for awaiting summons. On
25.10.1994, the plaintiff along with his
1 All] Shiv Charan Singh V. The XIth A.D.J., Aligarh and others
335
counsel appeared in the court but none
appeared on behalf of defendant and as
such,
the
court
passed
order
for
proceeding ex parte against the defendant
and fixed 28.11.1994 for ex parte hearing.
Ultimately, the suit was decreed ex parte
on 5.5.1995.

4. The tenant-petitioner moved an
application under order IX Rule 13 C.P.C.
for setting aside the ex parte decree
mainly on the grounds that no summons
was served on him through process server
or through registered post and he never
refused to received summons. It was also
alleged that during pendency of the suit,
the land lord sold that disputed house to
opposite party no. 4 to 6 (Sanjai Chopra,
Vikas Chopra and Kaushal Chopra),
which could not be done. The court
directed to serve the notice on defendants.
Again, the defendant- applicant was not
served and ex parte decree was passed.
On 22.8.1996 one Rajendra informed the
petitioner about ex parte decree then he
got the record inspected and moved an
application for setting aside the ex parte
decree. It was further alleged that house
number of the defendant was not
mentioned in the plaint.

5. A written objection was filed on
behalf of the land lord denying all the
allegations. The application was opposed
on the grounds, inter alia, that Indra Deo
Dubey, Peon, of the civil court went to
serve summons on the petitioner on
1.9.1994 and the petitioner in the presence
of two independent witnesses Gurvachan
and Ved Prakash refused to accept the
summons. Ultimately, peon affixed a
copy of the summons at the door of the
house. Besides, the summons was sent by
registered post also on 22.8.1994 and
same was also refused on 25.8.1994 and
as such, no misrepresentation or fraud
was practiced on the court and suit was
rightly decreed ex parte.

6. After hearing the learned counsel
for the parties, learned Judge, Small
Cause found that summons sent through
the Process server and postman was
refused by tenant-petitioner and he had
notice
of
the
suit.
Moreover,
the
application was barred by limitation. He,
therefore, rejected the application. The
tenant-petitioner filed S.C.C. Revision
No. 26 of 1998 in the court of District
Judge, which was also dismissed and the
order of the learned Judge Small Cause
was affirmed by the Additional District
Judge on 2.11.1998.

7. Learned counsel for the petitioner
has assailed the impugned orders mainly
on the grounds that the court never passed
any order for issuing summons to the
defendant by registered post as provided
under Rule 19 A of Order V. C.P.C. and
alleged refusal of the petitioner and
endorsement of the postman on the
envelope
was
manipulated
by
the
respondent. It is quite clear from the order
sheet of the court below that the summons
originally sent by the court was not served
upon the petitioner and was received back
unserved. The court passed no order for
issuing summons again for service.
Moreover, house number of the defendant
was not mentioned in the envelope. There
was absolutely no service upon the
petitioner through the process server or by
the registered post.

Learned counsel for the petitioner
has placed reliance on the following
decisions:-
336 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
1. Smt. Munni alias Rajeshwari vs.
Kshetra pal singh 2004 All.L.J.
3852

2. Shah Abetsham Mustafa Faridi vs.
Smt. Radhika Dev I 1991(2) ARC
305

3. State of U.P. and others vs. Ram
Prasad 1997 (1) ARC 328

8. On the other hand, learned
counsel for the land lord- respondent has
supported the orders impugned in this
petition and submitted that provision of
order V Rule 19-A C.P.C. is enabling in
nature and no specific order for issuing
summons by registered post is required by
Order V Rule 19-A C.P.C. In support of
his contention, he placed reliance on a
decision in the case of Harkesh Chand
vs.
Additional
District
Judge,
Dehradun and others 1993 (1) ARC 21.
It was also contended that the trial court
took pains to record and examine
evidence regarding factum of service
upon the tenant-petitioner and both the
courts have
found that service of
summons was actually made by the
postman to the petitioner at his residence.
The mere fact that formal declaration of
service was not made by the trial court
before proceeding ex parte in accordance
with Order V Rule 19-A C.P.C. would not
be a ground for setting aside the ex parte
decree. He has also placed reliance on a
decision
of
Rajasthan
High
Court
Prakash Chander vs.Smt. Sunder Bai
and another AIR 1979 Raj. 108.

9. I have considered the rival
contention of the parties and have gone
through the petition, counter affidavit, and
rejoinder affidavit carefully. I have also
perused the annexures and decisions.
After having considered the arguments
made on behalf of the petitioner, I find
that the contention of learned counsel is
well founded and has to be accepted. It is
quite obvious from perusal of the copy of
the order sheet (Annexure-1) that S.C.C.
Suit was filed on 9.8.1994 and on the
same day, after registration of the suit, the
court passed order for issuing summons to
the defendant fixing 8.10.1994 for final
disposal.

10. The courts were closed on 8th
and 9th October, 1994 on account of
second Saturday and Sunday respectively.
On 10.10.1994, the lawyers were on strike
and summons were received back as
unserved. However, the court fixed
25.10.1994 for awaiting the summons. On
25.10.1994, the plaintiff alongwith his
counsel appeared in the court but non put
in appearance on behalf of the defendant.
Hence, the court passed order for
proceeding ex parte and fixed 28.11.1994.

11. It further appears that the
application for amendment of the plaint
was moved and as such, a fresh summons
was ordered to be issued. On 1.2.1995,
none appeared on behalf of the defendant
despite service of summons. Again on
4.4.1995, the court passed order for
proceedings exparte and ultimately on
5.5.1995, the suit was decreed exparte.

12. Order V C.P.C. deals with issue
and service of summons. Rule (5)
provides that in every suit, heard by a
court of Small Causes, the summons shall
be for final disposal of the suit. Rules 9 to
19 of Order V C.P.C. provide mode of
service on defendant. Rule 19-A lays
down that the court shall, in addition to
and simultaneously with, the issue of
summons for service in the manner
1 All] Shiv Charan Singh V. The XIth A.D.J., Aligarh and others
337
provided in rule 9 to 19 also direct the
summons to be served by registered post,
acknowledgement due, addressed to the
defendant, or his agent empowered to
accept the service at the place where the
defendant or his agent actually and
voluntarily resides. Proviso (1) provides
that nothing in this sub rule shall require
the court to issue a summons for service
by
registered
post,
where
in
the
circumstances of the case, the court
considers it unnecessary. It is, therefore,
clear that the order for issuing summons
for service on defendant by registered
post, in addition to service in the manner
provided in rules (9) to (19), shall not be
passed in every case unless the court
considers it necessary. The sub rule (2)
further
provides
that
when
an
acknowledgement
signed
by
the
defendant is received back by the court or
the postal article containing the summons
is received back with an endorsement
made by a postal employee to the effect
that the defendant had refused to take deli
very of the envelope containing summons
when tendered to him, the court issuing
summons shall declare that the summons
had been duly served upon the defendant.
Again, the proviso to sub rule (2) further
requires that this declaration shall not be
made by the court unless it is satisfied that
the summons sent through the registered
post was properly addressed, prepaid and
duly
sent
by
registered
post
acknowledgement due. The declaration
referred to in this sub rule shall be made
notwithstanding
the
fact
that
the
acknowledgement having been lost or
mislaid or for other reason has not been
received by the court within thirty days
from the date of the issue of the
summons.

13. In the instant case, I find that
there was no order of the court for issuing
summons to the defendant by registered
post. However, summons was sent for
service to the defendant by registered
post. This fact in itself makes the service
of summons on the defendant highly
doubtful. Learned counsel for the land
lord- respondent could not sow any order
of the court in this regard. It is noteworthy
that the petitioner pleaded in para 3 of his
application for setting aside the exparte
decree (Annexure-3 to the writ petition)
that no summons sent through the process
server or by registered post was served
upon him nor he refused to accept the
summons.
Learned
counsel
for
the
respondent in this court laid emphasis on
the service of summons on the petitioner
by registered post. Learned counsel for
the petitioner has placed reliance on the
decisions in Smt. Munni alias Rajeshwari
vs. Kshetra Pal Singh 2004 ALL.L.J.
3852, Shah Abetsham Mustafa Faridi vs.
Smt. Radhika Devi 1991 (2) ARC 305
and State of U.P. and others vs. Ram
Prasad 1997 (1) ARC 328.

14. In Munni case (Supra), the name
and address of the persons identifying the
defendant and witnessing the delivery or
tender of the summons, time etc. were
lacking in the report of the process server
and the court held that the summons were
not served on the defendant in accordance
with law. In the instant case, the plaintiff
himself, accompanied the process server
for identifying the defendant who had
refused to accept the summons in
presence of two independent witnesses
Gurvachan and Ved Prakash.

Note 1 to Rule 138 of General Rule
(Civil) Vol. 1 runs as under:-
338 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
"It should be impressed upon the
process servers that it is their duty and not
of the party concerned to find out the
person whom the process is to be served.
It is not necessary for the party to
accompany them for identifying that
person. They should seek the assistance of
the village headman, Lekhpal, Chaukidar,
etc. to find out person on whom the
process is to be served".

15. It is, therefore, obvious that it
was not necessary for the plaintiff to
accompany the process server to identify
the defendant. He, however, went to the
defendant's house along with process
server on his own.

16. It was held by this Court in Shah
Abetsham Mustafa Faridi case (supra)
that where a summons is sent by the
registered post without any specific order
of the Court, the summons should not be
deemed to have been served. A Division
Bench of this Court in State of U.P. and
others ( supra) clearly held that under sub
rule (2) of rule 19-A , it is mandatory for
the court to declare in such circumstances
that the summons had been duly served
on the defendants. Unless there is such
declaration, the summons cannot be said
to have been served under Rule 19-A. In
the present case, it does not appear from
the record that there was any such
declaration made under sub rule (2) read
with the proviso thereunder. I am,
therefore, of the clear opinion that there is
nothing on record to arrive at the
conclusion that the summons was served
upon the petitioner as alleged by the
respondent.

17. For the aforesaid reasons, I am
fully satisfied that the summons was snot
served on the defendant-petitioner in
accordance with law and courts below
committed illegality in holding that the
summons had been duly served on him
and the suit was rightly decreed exparte. I
am, therefore, of the opinion that both the
courts below committed illegality in
rejecting the application under Order IX
Rule 13 C.P.C. I, therefore, hold that this
petition has merit and orders impugned in
this petition are liable to be quashed.

18. In the result, the petition
succeeds and is allowed with costs. The
order dated 22.5.1988 passed by the
respondent no. 2 and order of the
revisional court dated 2.11.1998 are
hereby quashed and the judgment and
decree dated 55.1995 passed by Judge,
Small Causes in S.C.C. Suit no. 99 of
1994 is also quashed. The case is sent
back to the court of Judge, Small Causes,
Aligarh for deciding the S.C.C. Suit no.
99 of 1994 afresh in accordance with law
expeditiously within a period of six
months from the date of production of a
certified copy of this order. The parties
are directed to appear in the court below
on 11.4.2005.

The Stay order dated 11.11.1998
stands vacated.

19. A copy of this order shall be
made available to learned counsel for the
petitioner within six days on payment of
usual charges.
---------
1 All] Roshan Lal Malhotra V. Raj Bahadur
339
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 7.3.2005

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 28938 of 2004

Roshan Lal Malhotra

...Petitioner
Versus
Raj Bahadur

 ...Respondent

Counsel for the Petitioner:
Sri N.C. Rajvanshi,
Sri M.K. Rajvanshi

Counsel for the Respondent:
Sri B. Dayal

U.P.
Urban
Building
(Regulation
of
letting Rent & Eviction) Act 1972-Section
21
(1)
(a)-readwith-Code
of
Civil
Procedure Order IX rule 13 read with
section
151
C.P.C.-Presumption
regarding service of summons- refusal
by tenant/petitioner disputing the note
of refusal-it was incumbent upon the
prescribed authority to record specific
finding asking the land lord to produce
the post man- order to proceed ex parteliable to quashed-matter remanded back
to decide in accordance with law after
affording opportunity of hearing.

Held- Para 2

The prescribed authority by the order
impugned
found
that
from
the
endorsement
of
the
refusal,
it
is
presumed that the service of summons is
sufficient and proceeded to decide the
matter ex parte. It is further submitted
that the presumption of service of
summons refusing by the petitionertenant is rebutable presumption and
once the petitioner-tenant has put in
appearance denying the allegations that
he has ever been served and that the
note of refusal has been manipulated,
therefore it was incumbent upon the
prescribed authority to have recorded a
finding by asking the land lord to
produce the postman concerned as held
by this Court
Case law discussed:
AIR 1981 Alld-2008 (relied on)
AIR 1980 Alld-280 (relied on)
1978 ARC-496- (relied on)

(Delivered by Hon'ble Anjani Kumar, J.)

1. This writ petition under Article
226 of the Constitution of India filed by
the tenant-petitioner is directed against
the orders dated 8th September, 2003 and
23rd July, 2004, passed by the prescribed
authority under the provisions of the U.P.
Act No. XII of 1972 (In short 'the Act'),
copies whereof are annexed as Annexure
Nos. '2' and '7', respectively to the writ
petition.

2. The facts leading to the filing of
the present writ petition are that the
petitioner in this petition is the tenant and
the respondent is the land lord of the
accommodation in dispute. On 18th
November, 2002 an application has been
filed by the land lord- respondent
purporting to be an application under
Section 21 (1) (a) of the Act for release of
the accommodation in dispute in favour of
the land lord. The prescribed authority
vide its order dated 15th February, 2003
held that the service of summons of the
aforesaid application for release of the
accommodation filed by the land lord is
sufficient and directed the case to be
proceeded ex parte. On 8th September,
2003, the prescribed authority allowed the
release application ex parte filed by the
land lord and directed release of the
accommodation in dispute in favour of the
land lord. The petitioner-tenant for the
first time when came to know of the
aforesaid proceedings on 23rd January,