HONBLE SRI JUSTICE A.V. SESHA SAI
APPEAL SUIT No.437 OF 2007
18.12.2017
1. G.Hari Babu, W/o late G.Raghavaiah, Aged 47 years, Occ: Business. 2. Smt.G.Venkata Lakshmi, W/o G.Hari Babu,Aged 41 ye
K.Javaram Reddy, S/o K.Balreddy, Aged 49 years, Occ: Business & 2 others. All are residents of Plot No.40, Jalavayu Vih
Counsel for Appellants: Sri B.Venkata Ramarao.
Counsel for respondents: Sri V.N.R.Prashanth
<GIST:
>HEAD NOTE:
? Cases referred
1.(1999) 8 SCC 396
2.AIR 1974 AP Pg.1 (FB)
3.AIR 1957 AP Pg.1 (FB)
THE HONBLE SRI JUSTICE A.V.SESHA SAI
APPEAL SUIT No.437 of 2007
JUDGMENT:
The defendants, in O.S.No.125 of 2003 on the file of the II
Additional District Judge, Ranga Reddy District at L.B.Nagar,
Hyderabad, are the appellants in the present Appeal Suit, preferred
under Section 96 of the Code of Civil Procedure (for brevity, CPC).
Heard Sri B.Venkat Rama Rao, learned counsel for the
appellants, and Sri V.N.R.Prashanth, learned counsel for the
respondents, apart from perusing the material available before this
Court.
This Appeal Suit challenges the judgment and decree, dated
22.11.2004, passed by the learned II Additional District Judge,
Ranga Reddy District at L.B.Nagar, Hyderabad in O.S.No.125 of
2003, instituted by the respondents herein, praying for cancellation
of two sale deeds, in respect of the suit schedule property, bearing
document Nos.9208/02 and 9209/02, dated 26.10.2002, and for a
direction to the defendants to execute the deed of cancellation
before the Sub-Registrar, Medchel.
During the course of trial, on behalf of the plaintiffs, the first
plaintiff was examined as P.W.1 and Exs.A1 to A3 were marked.
The defendants-appellants herein remained ex parte.
The learned II Additional District Judge decreed the suit
ex parte on 22.11.2004. The present Appeal Suit, filed under
Section 96 CPC by the defendants in the suit, challenges the
validity and the legal sustainability of the said judgment and
decree.
It is contended by the learned counsel for the defendants-
appellants herein that the judgment rendered by the learned II
Additional District Judge is erroneous, contrary to law, weight of
evidence and probabilities of the case and also not in conformity
with the provisions of Order XX Rule 4 CPC; that the learned Judge
grossly erred in decreeing the suit ex parte contrary to the
provisions of Order V CPC. In order to bolster his submissions and
contentions, the learned counsel placed reliance on the following
judgments:
1. (1999) 8 SCC 396
2. AIR 1974 AP Pg.1 (FB)
3. AIR 1957 AP Pg.1 (FB)
On the contrary, it is vehemently contended by the learned
counsel for the plaintiffs-respondents herein that the learned II
Additional District Judge rendered the judgment strictly in
accordance with law, as such, the same does not warrant any
interference of this Court under Section 96 CPC. It is the further
submission of the learned counsel that, only after effecting service
of notice on the defendants, by way of publication in a daily
newspaper, under the provisions of Order V Rule 20 CPC, the
learned Judge decreed the suit. It is further submitted by the
learned counsel that since the defendants-appellants herein did not
contest the matter before the Court below, they cannot maintain
the present Appeal Suit under Section 96 CPC.
In the above background, now the points that arise for
consideration of this Court, in the present Appeal Suit, are as
under:
1. Whether the judgment rendered by the Court
below is in accordance with the provisions of
Order XX Rule 4 CPC?
2. Whether the Court below adhered to the
other provisions of Order V CPC before
ordering substitute service under the
provisions of Order V Rule 20 CPC?
3. Whether the judgment and decree rendered
by the learned Additional District Judge are
sustainable and tenable?
Point No.1:
In order to examine the issue as to whether the judgment
rendered by the learned II Additional District Judge is in conformity
with the provisions of Order XX Rule 4 CPC, it would be
appropriate and apposite to refer to the said provision of law.
Order XX CPC deals with the judgment and decree. Sub-Rule
(1) of Rule 4 of Order XX CPC deals with the judgment of the Small
Causes Courts and sub-rule (2) of the said rule deals with the
judgments of other Courts. Sub-rule (2) of Rule 4 of Order XX CPC
reads as under:
judgments other than in Small Cause Suits
shall contain a concise statement of the case,
the points for determination, the decision
thereon, and the reasons for such decision.
In the instant case, the complaint of the defendants-
appellants is that the judgment rendered by the learned II
Additional District Judge is not in consonance with the above
referred provisions of law. In this context, it may be appropriate to
extract the judgment rendered by the Court below which reads as
under:
Heard the counsel for the petitioners.
Perused the contents of sworn affidavit of P.W.1
and the documents which are marked as Exs.A1
to A3 on behalf of the plaintiffs. Suit filed by the
plaintiff is hereby decreed as prayed for with
costs and the sale deed bearing No.9208/02 and
9209/02 dated 26.10.2002 which are marked as
Exs.A1 and A2 respectively are hereby cancelled.
Written and pronounced by me in open Court
on this the 22nd day of Nov.2004.
In this context, it may be apt to refer to the judgment cited by
the learned counsel for the defendants-appellants in BALARAJ
TANEJA & ANOTHER v. SUNIL MADAN & ANOTHER , wherein
the Honourable Apex Court, while dealing with the provisions of
Section 2 (9) and Order XX Rule 4 (2) CPC, held, at paragraph
Nos.42 and 45, as under:
42. Judgment" as defined in Section 2(9)
of the Code of Civil Procedure means the
statement given by the Judge of the grounds for
a decree or order. What a judgment should
contain is indicated in Order 20, Rule 4 (2)
which says that a judgment:
"shall contain a concise statement of the case,
the points for determination, the decision
thereon and the reasons for such decision."
45. Learned counsel for respondent No. 1
contended that the provisions of Order 20, Rule
1 (2) would apply only to contested cases as it is
only in those cases that "the points for
determination" as mentioned in this Rule will
have to be indicated, and not in a case in which
the written statement has not been filed by the
defendants and the facts set out in the plaint are
deemed to have been admitted. We do not agree.
Whether it is a case which is contested by the
defendants by filing a written statement, or a
case which proceeds ex-parte and is ultimately
decided as an ex-parte case, or is a case in
which the written statement is not filed and the
case is decided under Order 8 Rule 10, the
Court has to write a judgment which must be in
conformity with the provisions of the Code or at
least set out the reasoning by which the
controversy is resolved.
In AZIZ AHMED KHAN v. I.A.PATEL , a Full Bench of this
Court, while dealing with an identical situation, at paragraph Nos.8
& 9, held as under:
8. The irregularities committed by the trial
court do not stop at that. The judgment that it
has given does not conform to the provisions of
Rule 4 (2) of Order XX CPC at all. Whereas a
judgment shall contain a concise statement of
the case, the points for determination, and the
decision thereon, we search in vain for any of
these essentials in the impugned judgment. It is
no judgment at all. The provisions of Rule 4 (2)
have a set purpose. The form is designed to
ensure that while pronouncing the orders or
judgments. They should apply their minds to the
facts of the case and the points at issue and give
a reasoned judgment thereon so that not only
their own conscience may be satisfied but also
the litigants should have satisfaction that all
their evidence has been evaluated and their
contentions and arguments duly considered.
This is of vital importance inasmuch as the
whole edifice of confidence of the litigants in
Courts is built upon the quality of judgments.
The Courts, therefore, have to necessarily take
care that their judgments conform to the
provisions of law and are products of sound
reasoning. In the instant case the judgment of
the trial Court which we have extracted above is
no judgment at all. The appeal must be allowed
on that basis also.
9. Then again the so-called judgment of the
Court suffers from a further defect. It is based
upon material which is inadmissible in evidence.
In fact that is the main grievance of the
defendants and the case has before this Full
Bench for a pronouncement thereon as well. It is
no doubt true that the proceedings against the
defendant were set ex parte under Order IX,
Rule 6 CPC after issues were framed in the case.
But that does not mean that the defendant
should suffer decree by mere reason of his
absence. The fact that Rule 6 of Order IX CPC
permits the proceedings to be set ex parte does
not dispense with the proof of the case. The
meaning of "ex parte" being "in the absence of" ,
all that follows from the order setting
proceedings ex parte is that the proceedings
which had to continue otherwise in the presence
of the party may now be continued in his
absence.
The absence of the defendants thus does not
dispense with the responsibility of the plaintiff to
prove his case to the satisfaction of the Court.
He has to discharge his onus in the same way as
he should have done in the presence of the
defendant. He has to prove his case with the
help of the material which is legal evidence. His
burdan is in no way lightened by the absence of
the defendant. In fact the responsibility of the
Court also has increased as it has to reach its
conclusions without the assistance of the
defendant who, if present, would have raised all
questions with regard to admissibility of
evidence and cross-examined the witnesses and
advanced arguments in his favour. The Court
cannot pass a judgment in favour of the plaintiff
unless the suit is maintainable, the claim as set
up is established by the material on record and
the reliefs claimed can be lawfully granted.
In the case on hand, the learned II Additional District Judge,
in the impugned judgment, except saying that he perused the
contents of the sworn affidavit of P.W.1 and also the documents
marked, did not make any endeavour to render the judgment in
accordance with the provisions of Order XX Rule 4 CPC. The mode
and manner adopted by the learned Judge, for decreeing the suit,
is obviously not in conformity with the said provision of law but it is
also contrary to the law laid down by the Honourable Apex Court
and this Court in the above referred judgments. Therefore, the
impugned judgment and decree are liable to be set aside on the
said ground. Accordingly, point No.1 is answered in favour of the
defendants-appellants herein and against the plaintiffs.
Point No.2:
It is the submission of the learned counsel for the defendants-
appellants herein that the learned Additional District Judge passed
the impugned judgment without being preceded by proper
compliance of the provisions of Order V Rules 19 & 20 CPC.
In elaboration, it is further maintained by the learned counsel
for the defendants-appellants herein that, without making any
endeavour for due adherence to the provisions of Rules 19 &
20 CPC, the learned Judge decreed the suit ex parte. In the
direction of fortifying the said contention, the learned counsel has
placed on record the docket proceedings in O.S.No.125 of 2003.
The suit was admittedly presented on 01.09.2003. From
03.11.2003, awaiting service of summons on the defendants, the
Court adjourned the suit till 17.06.2004 and on 01.07.2004 the
Court recorded that the defendants 1 and 2 were called absent and
posted the case for steps on 02.07.2004. It is further evident from
the said docket proceedings that on 02.07.2004 the Court allowed
the substitute service petition by permitting the plaintiffs to publish
the notice in Prajasakthi daily newspaper of Hyderabad edition on
06.08.2004. Thereafter, on 06.08.2004, plaintiffs filed the
publication before the Court and the matter was adjourned to
13.08.2004 and on 13.08.2004 the defendants 1 and 2 were set
ex parte. Thereafter, the Court adjourned the matter from
25.08.2004 to 31.08.2004 and from 31.08.2004 to 26.10.2004 and
from 28.10.2004 to 17.11.2004 and, eventually, on 22.11.2004 the
Court heard the learned counsel for the plaintiffs and rendered the
impugned judgment and decree.
Rule 17 of Order V CPC deals with the procedure when the
defendant refuses to accept service or cannot be found. According
to the said rule, where the defendant or his agent or such other
person as aforesaid refuses to sign the acknowledgement, or where
the serving officer, after using all due and reasonable diligence,
cannot find the defendant [who is absent from his residence at the
time when service is sought to be effected on him at his residence
and there is no likelihood of his being found at the residence within
a reasonable time], and there is no agent empowered to accept
service of the summons on his behalf, or any other person on
whom service can be made, the serving officer shall affix a copy of
the summons on the outer door or some other conspicuous part of
the house in which the defendant ordinarily resides or carries on
business or personally works for gain, and shall then return the
original to the Court from which it was issued, with a report
endorsed thereon or annexed thereto stating that he has so affixed
the copy, the circumstances under which he did so, and the name
and address of the person (if any) by whom the house was
identified and in whose presence the copy was affixed.
Rule 19 of Order V CPC deals with examination of the serving
officer which stipulates that where summons is returned under
Rule 17 CPC, the Court shall, if the return under that rule has not
been verified by the affidavit of the serving officer, and may, if it has
been so verified, examine the serving officer on oath, or cause him
to be so examined by another Court, touching his proceedings, and
may make such further enquiry in the matter as it thinks fit; and
shall either declare that the summons has been duly served or
order such service as it thinks fit.
Rule 20 of Order V CPC, which is crucial for adjudication of
the issue in the present Appeal Suit, in clear and vivid terms,
stipulates that where the Court is satisfied that there is reason to
believe that the defendant is keeping out of the way for the purpose
of avoiding service, or that for any other reason the summons
cannot be served in the ordinary way, the Court shall order the
summons to be served by affixing a copy thereof in some
conspicuous place in the Court-house, and also upon some
conspicuous part of the house (if any) in which the defendant is
known to have last resided or carried on business or personally
worked for gain, or in such other manner as the Court thinks fit.
Rule 20 (1A) of Order V CPC also mandates that such publication
shall be made in a daily which has circulation in the relevant place.
In the instant case, as correctly pointed out by the learned
counsel for the appellants and as evident from the docket
proceedings, the Court below did not make any exercise or
endeavour to adhere to the above mandatory requirements of law.
In this context, it may be appropriate to refer to the judgment of a
Full Bench of this Court in G.SHANMUKHI v. UTAKUR VENKATA-
SRAMI REDDY AND ANOTHER , wherein this Court, at paragraph
No.8, held as under:
Order 5 deals with the issue of summons to
the defendant in order to apprise him of the
institution of the suit against him so that he
might appear and answer the claim. Rule 9 of
that order prescribes direct service on the
defendant or upon an agent empowered to
accept service on his behalf. Sub-rule (3) thereof
provides alternatively for service by registered
post prepaid for acknowledgment. Rule 12
directs that wherever it is practicable, service
shall be made on the defendant in person,
unless he has an agent empowered to accept
service, in which case service on such agent
would be sufficient.
Rules 13 and 14 enact that summons may be
served on a manager or agent of the Defendant
who carries on any business or work for him, if
the suit relates to such business or work, or an
agent of the Defendant in charge of any
immovable property, if the suit seeks a relief
respecting it. In a case where, the Defendant is
absent and has no agent empowered to accept
service, service may also be made on any adult
male member of the family of the Defendant who
is residing with him, as provided by Rule 15.
The summons is either to be delivered or
tendered to the Defendant, his agent or an adult
member of his family. Where they refuse to sign
an acknowledgment of service, the procedure to
be followed is prescribed by Rule 17, while
Rule 18 describes the procedure to be adopted
when the summons has been actually served on
any one of them. Then follows Rule 20 which
provides for substituted service in these terms:
(1). Where the Court is satisfied that there is
reason to believe that the Defendant is keeping
out of the way for the purpose of avoiding
service, or that for any other reason the
summons cannot be served in the ordinary way,
the Court shall order the summons to be served
by affixing a copy thereof in some conspicuous
place in the court-house, and also upon some
conspicuous part of the house (if any) in which
the Defendant is known to have last resided or
carried on business or personally worked for
gain, or in such other manner as the Court
thinks fit.
(2). Service substituted by order of the Court
shall be as effectual as if it had been made on
the Defendant personally.
It is manifest that these several modes of service
attempt to reconcile the need for bringing home
to the Defendant knowledge of the suit with the
practical necessity of proceeding as early as
possible with its trial. Where these rules of
service are observed, there would generally be
good reason for supposing that the Defendant
became aware of the institution of the suit,
though it does not necessarily follow that he
actually did.
It is possible that even in a case of personal
service or service upon an agent, etc., there may
be mistaken identity, and the person served may
not be the Defendant or his agent. The
Defendant when he comes to know of the suit or
the decree passed therein may in such a case
approach the Court for relief under Order 9,
Rule 13, Code of Civil Procedure (CPC), and
point out that he has not been 'duly served.
It is seen that in the case of substituted service,
there are two conditions prescribed before it can
be resorted to, viz., that the Court must be
satisfied either (1) that there is reason to believe
that the Defendant is keeping out of the way for
the purpose of avoiding service, or (2) that for
any other reason the summons cannot be served
in the ordinary way. The satisfaction of the
Court in each of these cases is brought about by
representations of the Plaintiff usually made by
an affidavit. If, of course, the Defendant has
been deliberately keeping out of the way and
substituted service is ordered in such a case, it
certainly would be 'due' service.
A party cannot close his eyes and complain that
he is unable to see. But, if on the other hand the
Defendant is not really keeping out of the way at
all and the Court is only induced to believe that
he is, by the one-sided representation of the
Plaintiff, it is clear that the service that is then
substituted cannot be regarded as "due" service.
Therefore when the question arises as to
whether in a particular case, substituted service
obtained from the Court is or is not "due"
service, it will have to be determined by
ascertaining whether the representations made
to the Court by the Plaintiff were not true, that
is to say, whether the Defendant could be
presumed in the circumstances, to have or had
actual knowledge.
Of course, substituted service will not be
directed unless the Court is satisfied as to the
existence of one or the other conditions specified
In the rule. But a mere note upon the record to
that effect is not conclusive against the
Defendant though in the absence of any other
practicable alternative the Court must proceed
upon the looting, for the time being, that the
service is as effectual as personal service.
This effectuality is only for the purpose of
enabling the Court to go on with the suit. But,
its-effectuality against the Defendant depends
solely on whether he really avoided service or
whether as a matter of fact he came to know of
the suit otherwise. These facts will have to be
determined by the Court to which application is
made to Bet aside an ex parte decree.
The material available on record, in clear and vivid terms,
reveals that the Court below did not adhere to the mandatory
provisions of Order V CPC. On this ground also the impugned
judgment is liable to be set aside. Accordingly, point No.2 is also
answered in favour of the defendants-appellants herein.
Point No.3:
In the result, the Appeal Suit is allowed, setting aside the
judgment and decree, dated 22.11.2004, in O.S.No.125 of 2003,
passed by the learned II Additional District Judge, Ranga Reddy
District at L.B.Nagar, Hyderabad and the said suit-O.S.No.125 of
2003 is remanded to the Court below for fresh enquiry and for
rendering judgment, in accordance with law, after giving
opportunity to all the stakeholders.
As a sequel thereto, miscellaneous Petitions pending, if any,
in this Appeal Suit, shall stand closed. There shall be no order as to
costs.
__________________
A.V.SESHA SAI,J
18th December, 2017
APPEAL SUIT No.437 OF 2007
18.12.2017
1. G.Hari Babu, W/o late G.Raghavaiah, Aged 47 years, Occ: Business. 2. Smt.G.Venkata Lakshmi, W/o G.Hari Babu,Aged 41 ye
K.Javaram Reddy, S/o K.Balreddy, Aged 49 years, Occ: Business & 2 others. All are residents of Plot No.40, Jalavayu Vih
Counsel for Appellants: Sri B.Venkata Ramarao.
Counsel for respondents: Sri V.N.R.Prashanth
<GIST:
>HEAD NOTE:
? Cases referred
1.(1999) 8 SCC 396
2.AIR 1974 AP Pg.1 (FB)
3.AIR 1957 AP Pg.1 (FB)
THE HONBLE SRI JUSTICE A.V.SESHA SAI
APPEAL SUIT No.437 of 2007
JUDGMENT:
The defendants, in O.S.No.125 of 2003 on the file of the II
Additional District Judge, Ranga Reddy District at L.B.Nagar,
Hyderabad, are the appellants in the present Appeal Suit, preferred
under Section 96 of the Code of Civil Procedure (for brevity, CPC).
Heard Sri B.Venkat Rama Rao, learned counsel for the
appellants, and Sri V.N.R.Prashanth, learned counsel for the
respondents, apart from perusing the material available before this
Court.
This Appeal Suit challenges the judgment and decree, dated
22.11.2004, passed by the learned II Additional District Judge,
Ranga Reddy District at L.B.Nagar, Hyderabad in O.S.No.125 of
2003, instituted by the respondents herein, praying for cancellation
of two sale deeds, in respect of the suit schedule property, bearing
document Nos.9208/02 and 9209/02, dated 26.10.2002, and for a
direction to the defendants to execute the deed of cancellation
before the Sub-Registrar, Medchel.
During the course of trial, on behalf of the plaintiffs, the first
plaintiff was examined as P.W.1 and Exs.A1 to A3 were marked.
The defendants-appellants herein remained ex parte.
The learned II Additional District Judge decreed the suit
ex parte on 22.11.2004. The present Appeal Suit, filed under
Section 96 CPC by the defendants in the suit, challenges the
validity and the legal sustainability of the said judgment and
decree.
It is contended by the learned counsel for the defendants-
appellants herein that the judgment rendered by the learned II
Additional District Judge is erroneous, contrary to law, weight of
evidence and probabilities of the case and also not in conformity
with the provisions of Order XX Rule 4 CPC; that the learned Judge
grossly erred in decreeing the suit ex parte contrary to the
provisions of Order V CPC. In order to bolster his submissions and
contentions, the learned counsel placed reliance on the following
judgments:
1. (1999) 8 SCC 396
2. AIR 1974 AP Pg.1 (FB)
3. AIR 1957 AP Pg.1 (FB)
On the contrary, it is vehemently contended by the learned
counsel for the plaintiffs-respondents herein that the learned II
Additional District Judge rendered the judgment strictly in
accordance with law, as such, the same does not warrant any
interference of this Court under Section 96 CPC. It is the further
submission of the learned counsel that, only after effecting service
of notice on the defendants, by way of publication in a daily
newspaper, under the provisions of Order V Rule 20 CPC, the
learned Judge decreed the suit. It is further submitted by the
learned counsel that since the defendants-appellants herein did not
contest the matter before the Court below, they cannot maintain
the present Appeal Suit under Section 96 CPC.
In the above background, now the points that arise for
consideration of this Court, in the present Appeal Suit, are as
under:
1. Whether the judgment rendered by the Court
below is in accordance with the provisions of
Order XX Rule 4 CPC?
2. Whether the Court below adhered to the
other provisions of Order V CPC before
ordering substitute service under the
provisions of Order V Rule 20 CPC?
3. Whether the judgment and decree rendered
by the learned Additional District Judge are
sustainable and tenable?
Point No.1:
In order to examine the issue as to whether the judgment
rendered by the learned II Additional District Judge is in conformity
with the provisions of Order XX Rule 4 CPC, it would be
appropriate and apposite to refer to the said provision of law.
Order XX CPC deals with the judgment and decree. Sub-Rule
(1) of Rule 4 of Order XX CPC deals with the judgment of the Small
Causes Courts and sub-rule (2) of the said rule deals with the
judgments of other Courts. Sub-rule (2) of Rule 4 of Order XX CPC
reads as under:
judgments other than in Small Cause Suits
shall contain a concise statement of the case,
the points for determination, the decision
thereon, and the reasons for such decision.
In the instant case, the complaint of the defendants-
appellants is that the judgment rendered by the learned II
Additional District Judge is not in consonance with the above
referred provisions of law. In this context, it may be appropriate to
extract the judgment rendered by the Court below which reads as
under:
Heard the counsel for the petitioners.
Perused the contents of sworn affidavit of P.W.1
and the documents which are marked as Exs.A1
to A3 on behalf of the plaintiffs. Suit filed by the
plaintiff is hereby decreed as prayed for with
costs and the sale deed bearing No.9208/02 and
9209/02 dated 26.10.2002 which are marked as
Exs.A1 and A2 respectively are hereby cancelled.
Written and pronounced by me in open Court
on this the 22nd day of Nov.2004.
In this context, it may be apt to refer to the judgment cited by
the learned counsel for the defendants-appellants in BALARAJ
TANEJA & ANOTHER v. SUNIL MADAN & ANOTHER , wherein
the Honourable Apex Court, while dealing with the provisions of
Section 2 (9) and Order XX Rule 4 (2) CPC, held, at paragraph
Nos.42 and 45, as under:
42. Judgment" as defined in Section 2(9)
of the Code of Civil Procedure means the
statement given by the Judge of the grounds for
a decree or order. What a judgment should
contain is indicated in Order 20, Rule 4 (2)
which says that a judgment:
"shall contain a concise statement of the case,
the points for determination, the decision
thereon and the reasons for such decision."
45. Learned counsel for respondent No. 1
contended that the provisions of Order 20, Rule
1 (2) would apply only to contested cases as it is
only in those cases that "the points for
determination" as mentioned in this Rule will
have to be indicated, and not in a case in which
the written statement has not been filed by the
defendants and the facts set out in the plaint are
deemed to have been admitted. We do not agree.
Whether it is a case which is contested by the
defendants by filing a written statement, or a
case which proceeds ex-parte and is ultimately
decided as an ex-parte case, or is a case in
which the written statement is not filed and the
case is decided under Order 8 Rule 10, the
Court has to write a judgment which must be in
conformity with the provisions of the Code or at
least set out the reasoning by which the
controversy is resolved.
In AZIZ AHMED KHAN v. I.A.PATEL , a Full Bench of this
Court, while dealing with an identical situation, at paragraph Nos.8
& 9, held as under:
8. The irregularities committed by the trial
court do not stop at that. The judgment that it
has given does not conform to the provisions of
Rule 4 (2) of Order XX CPC at all. Whereas a
judgment shall contain a concise statement of
the case, the points for determination, and the
decision thereon, we search in vain for any of
these essentials in the impugned judgment. It is
no judgment at all. The provisions of Rule 4 (2)
have a set purpose. The form is designed to
ensure that while pronouncing the orders or
judgments. They should apply their minds to the
facts of the case and the points at issue and give
a reasoned judgment thereon so that not only
their own conscience may be satisfied but also
the litigants should have satisfaction that all
their evidence has been evaluated and their
contentions and arguments duly considered.
This is of vital importance inasmuch as the
whole edifice of confidence of the litigants in
Courts is built upon the quality of judgments.
The Courts, therefore, have to necessarily take
care that their judgments conform to the
provisions of law and are products of sound
reasoning. In the instant case the judgment of
the trial Court which we have extracted above is
no judgment at all. The appeal must be allowed
on that basis also.
9. Then again the so-called judgment of the
Court suffers from a further defect. It is based
upon material which is inadmissible in evidence.
In fact that is the main grievance of the
defendants and the case has before this Full
Bench for a pronouncement thereon as well. It is
no doubt true that the proceedings against the
defendant were set ex parte under Order IX,
Rule 6 CPC after issues were framed in the case.
But that does not mean that the defendant
should suffer decree by mere reason of his
absence. The fact that Rule 6 of Order IX CPC
permits the proceedings to be set ex parte does
not dispense with the proof of the case. The
meaning of "ex parte" being "in the absence of" ,
all that follows from the order setting
proceedings ex parte is that the proceedings
which had to continue otherwise in the presence
of the party may now be continued in his
absence.
The absence of the defendants thus does not
dispense with the responsibility of the plaintiff to
prove his case to the satisfaction of the Court.
He has to discharge his onus in the same way as
he should have done in the presence of the
defendant. He has to prove his case with the
help of the material which is legal evidence. His
burdan is in no way lightened by the absence of
the defendant. In fact the responsibility of the
Court also has increased as it has to reach its
conclusions without the assistance of the
defendant who, if present, would have raised all
questions with regard to admissibility of
evidence and cross-examined the witnesses and
advanced arguments in his favour. The Court
cannot pass a judgment in favour of the plaintiff
unless the suit is maintainable, the claim as set
up is established by the material on record and
the reliefs claimed can be lawfully granted.
In the case on hand, the learned II Additional District Judge,
in the impugned judgment, except saying that he perused the
contents of the sworn affidavit of P.W.1 and also the documents
marked, did not make any endeavour to render the judgment in
accordance with the provisions of Order XX Rule 4 CPC. The mode
and manner adopted by the learned Judge, for decreeing the suit,
is obviously not in conformity with the said provision of law but it is
also contrary to the law laid down by the Honourable Apex Court
and this Court in the above referred judgments. Therefore, the
impugned judgment and decree are liable to be set aside on the
said ground. Accordingly, point No.1 is answered in favour of the
defendants-appellants herein and against the plaintiffs.
Point No.2:
It is the submission of the learned counsel for the defendants-
appellants herein that the learned Additional District Judge passed
the impugned judgment without being preceded by proper
compliance of the provisions of Order V Rules 19 & 20 CPC.
In elaboration, it is further maintained by the learned counsel
for the defendants-appellants herein that, without making any
endeavour for due adherence to the provisions of Rules 19 &
20 CPC, the learned Judge decreed the suit ex parte. In the
direction of fortifying the said contention, the learned counsel has
placed on record the docket proceedings in O.S.No.125 of 2003.
The suit was admittedly presented on 01.09.2003. From
03.11.2003, awaiting service of summons on the defendants, the
Court adjourned the suit till 17.06.2004 and on 01.07.2004 the
Court recorded that the defendants 1 and 2 were called absent and
posted the case for steps on 02.07.2004. It is further evident from
the said docket proceedings that on 02.07.2004 the Court allowed
the substitute service petition by permitting the plaintiffs to publish
the notice in Prajasakthi daily newspaper of Hyderabad edition on
06.08.2004. Thereafter, on 06.08.2004, plaintiffs filed the
publication before the Court and the matter was adjourned to
13.08.2004 and on 13.08.2004 the defendants 1 and 2 were set
ex parte. Thereafter, the Court adjourned the matter from
25.08.2004 to 31.08.2004 and from 31.08.2004 to 26.10.2004 and
from 28.10.2004 to 17.11.2004 and, eventually, on 22.11.2004 the
Court heard the learned counsel for the plaintiffs and rendered the
impugned judgment and decree.
Rule 17 of Order V CPC deals with the procedure when the
defendant refuses to accept service or cannot be found. According
to the said rule, where the defendant or his agent or such other
person as aforesaid refuses to sign the acknowledgement, or where
the serving officer, after using all due and reasonable diligence,
cannot find the defendant [who is absent from his residence at the
time when service is sought to be effected on him at his residence
and there is no likelihood of his being found at the residence within
a reasonable time], and there is no agent empowered to accept
service of the summons on his behalf, or any other person on
whom service can be made, the serving officer shall affix a copy of
the summons on the outer door or some other conspicuous part of
the house in which the defendant ordinarily resides or carries on
business or personally works for gain, and shall then return the
original to the Court from which it was issued, with a report
endorsed thereon or annexed thereto stating that he has so affixed
the copy, the circumstances under which he did so, and the name
and address of the person (if any) by whom the house was
identified and in whose presence the copy was affixed.
Rule 19 of Order V CPC deals with examination of the serving
officer which stipulates that where summons is returned under
Rule 17 CPC, the Court shall, if the return under that rule has not
been verified by the affidavit of the serving officer, and may, if it has
been so verified, examine the serving officer on oath, or cause him
to be so examined by another Court, touching his proceedings, and
may make such further enquiry in the matter as it thinks fit; and
shall either declare that the summons has been duly served or
order such service as it thinks fit.
Rule 20 of Order V CPC, which is crucial for adjudication of
the issue in the present Appeal Suit, in clear and vivid terms,
stipulates that where the Court is satisfied that there is reason to
believe that the defendant is keeping out of the way for the purpose
of avoiding service, or that for any other reason the summons
cannot be served in the ordinary way, the Court shall order the
summons to be served by affixing a copy thereof in some
conspicuous place in the Court-house, and also upon some
conspicuous part of the house (if any) in which the defendant is
known to have last resided or carried on business or personally
worked for gain, or in such other manner as the Court thinks fit.
Rule 20 (1A) of Order V CPC also mandates that such publication
shall be made in a daily which has circulation in the relevant place.
In the instant case, as correctly pointed out by the learned
counsel for the appellants and as evident from the docket
proceedings, the Court below did not make any exercise or
endeavour to adhere to the above mandatory requirements of law.
In this context, it may be appropriate to refer to the judgment of a
Full Bench of this Court in G.SHANMUKHI v. UTAKUR VENKATA-
SRAMI REDDY AND ANOTHER , wherein this Court, at paragraph
No.8, held as under:
Order 5 deals with the issue of summons to
the defendant in order to apprise him of the
institution of the suit against him so that he
might appear and answer the claim. Rule 9 of
that order prescribes direct service on the
defendant or upon an agent empowered to
accept service on his behalf. Sub-rule (3) thereof
provides alternatively for service by registered
post prepaid for acknowledgment. Rule 12
directs that wherever it is practicable, service
shall be made on the defendant in person,
unless he has an agent empowered to accept
service, in which case service on such agent
would be sufficient.
Rules 13 and 14 enact that summons may be
served on a manager or agent of the Defendant
who carries on any business or work for him, if
the suit relates to such business or work, or an
agent of the Defendant in charge of any
immovable property, if the suit seeks a relief
respecting it. In a case where, the Defendant is
absent and has no agent empowered to accept
service, service may also be made on any adult
male member of the family of the Defendant who
is residing with him, as provided by Rule 15.
The summons is either to be delivered or
tendered to the Defendant, his agent or an adult
member of his family. Where they refuse to sign
an acknowledgment of service, the procedure to
be followed is prescribed by Rule 17, while
Rule 18 describes the procedure to be adopted
when the summons has been actually served on
any one of them. Then follows Rule 20 which
provides for substituted service in these terms:
(1). Where the Court is satisfied that there is
reason to believe that the Defendant is keeping
out of the way for the purpose of avoiding
service, or that for any other reason the
summons cannot be served in the ordinary way,
the Court shall order the summons to be served
by affixing a copy thereof in some conspicuous
place in the court-house, and also upon some
conspicuous part of the house (if any) in which
the Defendant is known to have last resided or
carried on business or personally worked for
gain, or in such other manner as the Court
thinks fit.
(2). Service substituted by order of the Court
shall be as effectual as if it had been made on
the Defendant personally.
It is manifest that these several modes of service
attempt to reconcile the need for bringing home
to the Defendant knowledge of the suit with the
practical necessity of proceeding as early as
possible with its trial. Where these rules of
service are observed, there would generally be
good reason for supposing that the Defendant
became aware of the institution of the suit,
though it does not necessarily follow that he
actually did.
It is possible that even in a case of personal
service or service upon an agent, etc., there may
be mistaken identity, and the person served may
not be the Defendant or his agent. The
Defendant when he comes to know of the suit or
the decree passed therein may in such a case
approach the Court for relief under Order 9,
Rule 13, Code of Civil Procedure (CPC), and
point out that he has not been 'duly served.
It is seen that in the case of substituted service,
there are two conditions prescribed before it can
be resorted to, viz., that the Court must be
satisfied either (1) that there is reason to believe
that the Defendant is keeping out of the way for
the purpose of avoiding service, or (2) that for
any other reason the summons cannot be served
in the ordinary way. The satisfaction of the
Court in each of these cases is brought about by
representations of the Plaintiff usually made by
an affidavit. If, of course, the Defendant has
been deliberately keeping out of the way and
substituted service is ordered in such a case, it
certainly would be 'due' service.
A party cannot close his eyes and complain that
he is unable to see. But, if on the other hand the
Defendant is not really keeping out of the way at
all and the Court is only induced to believe that
he is, by the one-sided representation of the
Plaintiff, it is clear that the service that is then
substituted cannot be regarded as "due" service.
Therefore when the question arises as to
whether in a particular case, substituted service
obtained from the Court is or is not "due"
service, it will have to be determined by
ascertaining whether the representations made
to the Court by the Plaintiff were not true, that
is to say, whether the Defendant could be
presumed in the circumstances, to have or had
actual knowledge.
Of course, substituted service will not be
directed unless the Court is satisfied as to the
existence of one or the other conditions specified
In the rule. But a mere note upon the record to
that effect is not conclusive against the
Defendant though in the absence of any other
practicable alternative the Court must proceed
upon the looting, for the time being, that the
service is as effectual as personal service.
This effectuality is only for the purpose of
enabling the Court to go on with the suit. But,
its-effectuality against the Defendant depends
solely on whether he really avoided service or
whether as a matter of fact he came to know of
the suit otherwise. These facts will have to be
determined by the Court to which application is
made to Bet aside an ex parte decree.
The material available on record, in clear and vivid terms,
reveals that the Court below did not adhere to the mandatory
provisions of Order V CPC. On this ground also the impugned
judgment is liable to be set aside. Accordingly, point No.2 is also
answered in favour of the defendants-appellants herein.
Point No.3:
In the result, the Appeal Suit is allowed, setting aside the
judgment and decree, dated 22.11.2004, in O.S.No.125 of 2003,
passed by the learned II Additional District Judge, Ranga Reddy
District at L.B.Nagar, Hyderabad and the said suit-O.S.No.125 of
2003 is remanded to the Court below for fresh enquiry and for
rendering judgment, in accordance with law, after giving
opportunity to all the stakeholders.
As a sequel thereto, miscellaneous Petitions pending, if any,
in this Appeal Suit, shall stand closed. There shall be no order as to
costs.
__________________
A.V.SESHA SAI,J
18th December, 2017
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