A challenge has been laid by the petitioner-defendant No.4 (hereafter `the defendant No.4') to the order dated 30-7-2018 passed by the Civil Judge &
Judicial Magistrate (First Division) Pushkar (Ajmer) dismissing his application under Order 9 Rule 7 CPC for setting aside the ex-parte proceeding
taken against him vide order dated 25-4-2005.
The facts of the case are that the respondent-plaintiffs (hereafter `the plaintiffs') filed a suit for permanent injunction with regard to the suit property.
Summons were issued by the trial court to the defendants including the defendant petitioner. From the record of the file of the court, the trial judge
finding that the defendant No.4 having been served, yet failed to file appearance, made proceedings against him exparte on 25-4-2005.
It was alleged in the application by the defendant No.4 filed on 7-5-2018, that the process server in collusion with the plaintiffs made a false report on
23-4-2005 that he had refused to accept the summons, whereon the trial court being mislead vide order dated 25-4-2005 initiated ex-parte proceedings
against him. The defendant No.4 stated that he came to know of the proceedings against him in the suit only on 2-5-2018 when the defendant No.2
Kunj Behari asked him for title documents of the suit property needed for his defence in the suit and informed him of also being a party therein.
Thereafter on 7-5-2018 the application under Order 9 Rule 7 read with 151 CPC was moved for setting aside the exparte proceedings. That
application has been unjustly dismissed by the trial court under its impugned order dated 30-7-2018, submitted the defendant No.4's counsel, without as
much as addressing the moot issue of summons in the suit not having been served on the defendant No.4 as per the provision of Order 5 Rule 17 CPC
and Order 5 Rule 19 CPC. Reliance has been placed on M/s. Neerja Realtors Pvt. Ltd. Vs. Janglu (Dead) Thr.LR [AIR 2018 SC 753], Auto Cars vs.
Trimurti Cargo Movers Pvt. Ltd. [(2018)2 Civil Court Cases 428 (SC)], Naresh Chandra Agarwal Vs. Bank of Baroda [AIR 2001 SC 1253] and SB
Civil Miscellaneous Appeal No.1417/2014, Pratap Vs. Hari Singh, decided on 20-9-2017. Hence this petition.
Heard counsel for the defendant No.4 and perused the impugned order passed by the trial court.
A perusal of the impugned order indicates that the trial court has specifically held that from the court file it was evident that the defendant No.4 had
refused to receive the summons of the court in the suit even though the process server found him home owing to which the summons were affixed on
a conspicuous place of the home and signatures of two witnesses Mukesh and Shiv charan obtained. The report of the process server was verified by
him as required in law. Resultantly summons were taken to be properly served and yet defendant No.4 remaining absent despite knowledge of the
date in the suit, exparte proceedings were right taken against him on 25-4-2005.
I have considered the submissions of counsel for the defendant No.4. There is no force in the argument based on non compliance with Order 5 Rule
17 and 19 CPC for service of summons. For one the argument is one of fact which the trial court has held against the defendant No.4 in recording
that the verified report of the process server stated that the defendant No.4 was found at home but having refused to accept the court's summons they
were affixed on his residence as identified by the two witnesses, who also put their signatures on the portion of summons filed in court. The finding of
fact by the trial court cannot be impugned in this petition under Article 227 of the Constitution of India. Second, the trial court has noted that the
application under Order 9 Rule 7 CPC was filed 13 years subsequent to the drawing of the ex-parte proceedings on 254-2005 despite the defendant
No.4 having knowledge of the proceedings in the suit in view of being served resort to Order 5 Rule 17/19 CPC. There is a ring of truth in the
conclusion of the trial court as on a query to the counsel for the defendant No.4, he stated that the defendant No.4 was indeed related to the
defendant No.2 Kunj Behari, who was admittedly served summons in the suit in 2005 itself. And on the defendant's own case he got to know of the
suit and ex-parte proceedings therein against him on defendant No.2 asking for certain papers relevant to the defence in the suit which were with him.
Now if this was indeed so and Kunj Behari defendant No.2 knew that defendant No.4 had access to papers important to his defence in the suit, it was
wholly contrary to the normal course of human affairs that defendant No.2 would not earlier speak with defendant No.4 with regard to the suit where
they both were defendants.
The reliance placed by counsel for the defendant No.4 in support of this petition to several judgments is misdirected. Each of the case relied upon
turned on its own facts, wholly different and distinct from the facts of the instant case. No principle or ratio decidendi can be culled out from the cases
cited by counsel for the defendant No.4 obtains, which can be applied mechanically in all cases, irrespective of facts obtaining. If applications
under Order 9 Rule 7 CPC are favourably/ sympathetically addressed irrespective of the delay of several years in moving such application and even
where the trial court is satisfied from the record before it that compliance with Order 5 Rule 17 and 19 CPC was made out in a given case, it would
be a prescription of derailing trials and adding to the notorious delays in adjudication of suit, which delays already are a matter of grave concern both
to the Apex Court and this Court for reason of which administrative orders have been issued for expedited trial of cases over five years old. The
underlying suit in this petition is 13 years old.
Order 9 Rule 7 CPC is a salutary provision to overcome situations where for good reasons a defendant is found to have sufficient cause for not
appearing and contesting a case despite service of summons. But in the instant case the defendant No.4 is one who, as found by the trial court,
refused to accept the summons of the court and was therefore served by affixing of summons at his residence. Order 9 Rule 7 CPC cannot be used
as a weapon of strategy to delay fruition of the legal rights of a plaintiff. Nor an instrument to reward mischief and recalcitrance of a defendant.
This court would have to live in Alice's wonderland and be over credulous to accept the defendant No.4's cook and bull story about the manner in
which he came to know only in May, 2018 of the pending suit and ex-parte proceedings against him through defendant No.2 in the suit, one Kunj
Behari. The court will have to also gloss over the presumption under Section 114 of the Evidence Act regarding the existence of any fact considering
the common course of natural events, human conduct and public and private business in relation to the facts of a case and take an undeservedly
charitable view to the defendant No.4's benefit and correspondingly uncharitable view against the plaintiff on putting the clock back 13 years by
setting aside the impugned ex-parte order dated 25-42005. Service of summons in suits and other judicial proceeding is one of the major bottleneck in
the administration of justice. The courts have to take a pragmatic, even while a just view of when service of summons can in the facts of the case be
taken to be effected. That has been done by the trial court on the facts regarding service of summons on the defendant No.4. Loose casual view on
challenges to service of summon is a prescription for mischievous delays in trial and empowering of the manipulating litigant. The court has to be wary
of such litigants.
Having considered the impugned order dated 30-7-2018, the overall facts of the case, primarily the verified report of the process server of the court
who had no axe to grind with the defendant No.4 and which report has been accepted by the trial court twice over, once when proceedings in the suit
were made ex-parte against the defendant No.4 and again when his application under Order 9 Rule 7 CPC was considered and dismissed, the
admitted relationship of defendant No,.4 with the defendant No.2, who was served summon in 2005 itself and the delay of 13 years in moving the
application under Order 9 Rule 7 CPC, I am of the considered view that the impugned order based as it is on an objective consideration of the
material on record of the trial court and conduct of the defendant No.4 suffers neither any perversity, nor patent illegality, nor misdirection in law to
warrant interference therewith by this court under Article and 227 of the Constitution of India.Â
I, therefore find no force in this petition. Dismissed with cost of Rs.10,000/- to be paid by the petitioner defendant No.4 to the Rajasthan State Legal
Services Authority, Jaipur within three months from today.
Rajasthan State Legal Services Authority, Jaipur shall be free to approach the court for recovery of cost, if not paid within three months, as directed.
