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Rajasthan High Court
Magan Lal vs Ram Dev Sngh on 4 August, 2010



Magan Lal Sharma 
Shri Ram Dev Singh  

(S.B. Civil Misc. Appeal No.1916/2010)

S.B. Civil Misc. Appeal under Order 43 Rule 1 CPC 

Date of Order 			    ::                     August 4, 2010 


Mr. Jitendra Mitrucka for the appellant.
Mr. B.C. Rawat for the respondent. 

Aggrieved by the order dated 18.05.2010 passed by the Additional District & Sessions Judge, No.5, Jaipur City, Jaipur, whereby the learned Judge has dismissed the application filed under Order 9 Rule 13 read with Section 151 CPC, the appellant has approached this Court.

The brief facts of the case are that on 02.12.2008, the plaintiff-non-appellant filed a suit for recovery of Rs.2,00,000/- along with interest before the District & Sessions Court, Jaipur City, Jaipur. Since the appellant -defendant did not appear, vide order dated 01.09.2009, after taking presumption regarding service of notice, the Court proceeded ex parte against the appellant. The said suit has been decreed ex-parte, vide judgment and decree dated 29.09.2009. The plaintiff-respondent filed execution application on 02.01.2010 before the learned trial Court for execution of judgment and decree dated 29.09.2009. On 02.01.2010, the attachment orders have been passed in relation to the pension account No.3020828019. The appellant filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte judgment and decree dated 29.09.2009. However, the learned Court below, vide order dated 18.05.2010, has dismissed the said application. Hence, this appeal before this Court.

Mr. Jitendra Mitrucka, the learned counsel for the appellant, has vehemently contended that the notice through a registered post was not received by the appellant. But it was, in fact, received by one Mr. Bhagchand. Therefore, it cannot be concluded that the notices were duly served upon the appellant. Moreover, although the daily newspaper Navjyoti is published throughout the State and is widely read in Jaipur, yet the fact remains that the notice published in the said newspaper was not known to the appellant. Therefore, even the service of notice through publication in daily newspaper cannot be deemed to be sufficient. Lastly before ordering a substitute service, the learned Court should have ensured that the procedure as prescribed under Order 5 Rule 17 is followed. In fact, the notice had not been affixed on the residential premises of the appellant, and the learned trial Court has failed to examine the process server. Therefore, the service of notice cannot be deemed to be complete. In order to buttress this contention, the learned counsel has relied upon the cases of Chuki Devi (Smt.) & Ors. V/s. Laxminarayan [2010 (2) DNJ (Raj)718], and Banshi Lal V/s. Mahendra Kumar [2010 (1) DNJ (Raj.) 23].

On the other hand, Mr. B.C. Rawat, the learned counsel for the respondent, has strenuously contended that the registered notice sent to the appellant was, in fact, received by him. This is amply clear from the facts that he had submitted a copy of the envelop before Additional Civil Judge (Junior Division), West, Jaipur City, Jaipur. In case, the said notice were not received by him, there was no occasion for the appellant to submit a copy of the envelop before the said Court. Therefore, his contention that one Mr. Bhagchand had received a notice is baseless, as eventually the said notice did reach in the hands of the appellant. Moreover, under Order 5 Rule 20, the Court is empowered to direct that a substitute service be carried out. Therefore, the learned trial Court, in its wisdom, had rightly directed that the notice be published in daily newspaper Navjyoti. Once the notice is published, it is presumed that the notice has been served upon the appellant. Therefore, the appellant is not justified in claiming that the notice was not duly served upon him.

Heard the learned counsel for the parties and perused the impugned order.

The learned Judge has given two reasons for rejecting the application filed by the appellant : firstly, the registered notice was received by the appellant which is apparent from the fact that the appellant had submitted a copy of the envelop before the Additional Civil Judge. Although, the learned counsel for the appellant has contended that he had merely received an empty envelop, the said explanation is merely an excuse. Firstly, because even before the Additional Civil Judge, the appellant has never contended that he has merely received an empty envelop. Moreover, there is no reason for Mr. Bhagchand to hand over an empty envelop to the appellant. Therefore, the explanation being offered by the learned counsel for the appellant is more in nature of excuse than a valid justification.

Moreover, according to the learned Judge, since the notice was duly published in Navjyoti, it is deemed to be served upon the appellant. The appellant cannot claim that the notice is not deemed to be served as he had failed to read the said notice in the said newspaper. If this justification were allowed, it would dilute effectiveness of Order 5 Rule 20 CPC. Therefore, the said explanation is clearly untenable.

As far as the application under Order 5 Rule 17 is concerned, it is not a case of the appellant that he had refused to accept the notice and therefore, the procedure established under Rule 5 Rule 17 should have been carried out. Even if, for the sake argument, it is accepted that the appellant had refused to take the delivery of the notice, it does not preclude the Court from exercising its power under Order 5 Rule 20 CPC. Since the power has been exercised correctly by the Court, the appellant cannot have any ground for raising grievance.

Although the learned counsel for the appellant has relied upon the cases of Chuki Devi (Smt.) & Ors. (supra) and Banshi Lal (supra), yet both the cases are distinguishable from the facts of the present case. Hence, they are inapplicable, in the present case.

This appeal is devoid of any merit; it is, hereby, dismissed.



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