Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 9861 of 2018 Petitioner :- Hridai Narayan Respondent :- Civil Judge (J.D.) Jaunpur And 5 Others Counsel for Petitioner :- Rajesh Kumar Shukla
Hon'ble Mrs. Sunita Agarwal,J.
Supplementary affidavit filed today is taken on record.
The prayer in the present petition is to issue a direction to the trial court to decide the temporary injunction 6-C application pending in Original Suit No.510 of 2017 (Hridai Narayan Vs. Ram Sajiwan others) within stipulated period.
A perusal of the order sheet indicates that on the presentation of the suit, the trial court has refused to grant exparte interim injunction vide order dated 20.05.2017 while issuing notice to the defendants. There are five defendants in the suit.
It further transpires that on 23.08.2017, the trial court has recorded that summons had not been received back and, therefore, fixed 21.09.2017 for report regarding service. In the meantime, on 25.08.2017, on application moved by the petitioner for making Parivi through registry for service of summons on the defendants, the order was passed to do parivi through registry. On 31.08.2017, it appears that the petitioner/plaintiff had taken steps for service of notice through registry. The order dated 21.09.2017 and 18.10.2017 and 10.01.2018 records that the report regarding service through registry was not received. On 04.04.2018, the next date was lastly fixed to await the service of notice. On 12.03.2018, on an application moved by the petitioner, the service was directed to be affected through publication without recording any satisfaction regarding service through registry. On 20.04.2018, the Court after receipt of the copy of the newspaper had recorded its satisfaction regarding service of summons upon all the defendants.
Having noticed the said fact, this Court finds that the trial court had adopted wrong procedure ignoring the provisions as contained under Order 5 Rule 20 CPC.
The method of service as provided in Order 5 Rule 9 reads as under:-
"9. Delivery of summons by Court.- (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court.
(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him in such manner as the Court may direct.
(3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court: Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff.
(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of Rule 21 shall not apply.
(5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1)."
In the instant case, the trial court has proceeded to direct service through substituted mode without recording any satisfaction even as to whether the service through ordinary process and or registry had been served on the defendants. No satisfaction whatsoever has been recorded that the defendants are avoiding the notice or it was not possible to serve them in ordinary mode. In the said scenario, the satisfaction recorded by the trial court of service of notice on six defendants through publication vide order dated 20.04.2018 is found illegal.
The trial court is hereby directed to pass necessary orders requiring the plaintiff to take fresh steps for service of summons on defendant nos.1 to 6 by ordinary process as also registered A.D. i.e. the modes provided under Order 5 Rule 9 (3) C.P.C.
It shall, thereafter, proceed in accordance with law after recording satisfaction regarding service of summons on the defendants.
In any case, till the plaintiffs take steps for service as directed by the trial court and it is satisfied that the defendants have been served in accordance with Order 5 Rule 9 (5) C.P.C., it shall not proceed to decide the temporary injunction matter.
Subject to the above, the present petition is disposed of. Order Date :- 27.2.2019 Himanshu