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HIGH COURT OF DELHI
Date of Decision: 10th January, 2024
HARENDER SINGH (HAWALDAR) ..... Petitioner
Through: Mr. Nishant Khatri, Advocate.
Through: Mr. H.S. Sodhi, Advocate.
JUDGMENT
1. This is an application seeking condonation of delay of 58 days in filing the revision.
2. For the reasons stated in the application and in the interest of justice, the application is allowed and delay in filing the revision is condoned.
3. The petitioner, who was the defendant in suit bearing NO. 1147/2018, has filed the present Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908[1] challenging the legality and validity of the impugned order dated 25.04.2022 passed by Mr. Suresh Kumar Gupta, learned Principal District & Sessions Judge, North- West District, Rohini Courts, Delhi[2] in Misc. DJ No. 138/2021. 1 CPC 2 PD&SJ
4. Shorn of unnecessary details, a summary suit filed against the petitioner for non-filing of the appearance despite due service of the summons upon him was decreed vide judgment dated 03.01.2019. The petitioner/defendant filed an application under Order XXXVII Rule 4 of the CPC to set aside the impugned decree and the main plank of his objection was that summons were issued on 12.11.2018 and the process server apparently visited his residential premises on 14.11.2018 for service of the summons but he was not present in the house and the process server told his wife that she was bound to receive the Court orders on his behalf. The summons were thus served upon her in complete contravention of the provisions contained under Order V Rule 15 of the CPC.
5. It was also the case of the petitioner/defendant that the second address in the memo of parties was incorrect to the knowledge of the respondent/plaintiff and his correct address was deliberately concealed as he was not posted at Rohini Jail but at Mandoli Jail. The said application was dismissed by the learned PD&SJ setting out the following reasons:
6. Notice of the present revision petition was issued and served upon the respondent/plaintiff and on appearance, the present revision petition is opposed.
7. Having heard the learned counsel for the rival parties at the Bar for a considerable time and on perusal of the record, I find that the present revision petition is bereft of any merits.
8. First things first, it is borne out from the record that the respondent/plaintiff, i.e., the Decree Holder filed an execution application, which, upon notice was served upon the petitioner. A reply/objection was filed on his behalf wherein under paragraph (7) it was stated by the petitioner/Judgment Debtor that he could not appear before the Court on 03.01.2019, on which date, decree had been passed, due to demise of his sister-in-law (wife of brother Manjeet Mathur). In the subsequent paragraph viz., paragraph (8) it was averred by the petitioner/judgment debtor that his father had suffered attack in the nature of Brain Haemorrhage and remained hospitalized for 4-5 months. Therefore, he remained busy in discharging his social, moral and spiritual duties.
9. As brought out by the learned counsel for the respondent/ plaintiff, a new twist in the tale was sought to be introduced by the petitioner/defendant that although summons have been served upon his wife on 14.11.2018, he was having strained relationship with her, which fact has not been substantiated in any manner. Be that as it may, the main plank of the objection to the passing of the impugned decree dated 03.01.2019 is that there was no compliance by the process server with provisions of Order 5 Rule 15 of the CPC. The said provision is re-produced as under:- “15. Where service may be on an adult member of defendant’s family.- Where in any suit the defendant is absent from his residence at the time when the service of summons 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 he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation: A Servant is not a member of his family within the meaning of this rule.”
10. A careful perusal of the aforesaid provision would show that in the event of absence of defendant from his residence at the time of visit of the process server, coupled with no likelihood of the addressee/ defendant being found at his residence within a reasonable time, the process server has the discretion to effect service of the summons upon any adult male or female member of the family, residing with him. The provision mandates that service on servant would not be a valid service of summons. The expression „reasonable time‟ is not defined in the statute.
11. In the face of admission by the petitioner/defendant that summons were otherwise duly served upon his wife on 14.11.2018, the question arises, whether there was „reasonable time‟ within which the petitioner/defendant could have made his appearance at his residence and had received the summons. It would be unconscionable to assume that on a visit by the process server to the residence of the defendant, he should be compelled to wait for „unreasonable‟ period of time so as to wait for the defendant to come at home and then serve summons upon him. The expression „within reasonable time‟ means and connotes - within the reasonable time of such visit by the process server. In other words, it means reasonable time within, which, on visit by the process server, the defendant would be available.
12. I may hasten to add that but for the fact that there is admission that summons were duly served upon his wife, the learned Trial Court should ensure examination of the process server so as to satisfy itself whether or not summons have been duly served upon any adult member of the family.
13. In the instant matter, what turns the table against the petitioner/ defendant is that the service report, which is Annexure-III, appears to be duly signed by his wife, Smt. Savita Devi putting date as „14.11.2018‟ and also writing that she is wife of Harender, to whom on enquries, summons and copy of the plant was delivered. It is also brought out on the record that a different process server visited Rohini Jail on 15.11.2018 upon which he was told that the petitioner/ defendant was posted at Mandoli Jail and thereafter he went to Mandoli Jail No. 12 where he made enquiries about the petitioner/ defendant and he was informed that he was not posted thereat. There is no challenge by the petitioner/defendant to the said reports.
14. In view of the fact that the petitioner/defendant has tried to improve over his case at every stage of the matter and lack of bonafides on his part, this Court finds that no illegality, perversity or incorrect approach was adopted by the learned PD&SJ in passing the impugned order. Hence, the present revision petition is dismissed.
DHARMESH SHARMA, J. JANUARY 10, 2024