The petitioner is plaintiff in O.S.No.125 of 2005 on the file of the Sub-Court, Salem, who filed the suit against the respondent for specific performance of contract on the basis of an agreement of sale reportedly executed by the respondent. The suit was decreed ex parte on 28.06.2005 and the respondent levied execution proceedings in R.E.P.No.303 of 2005 for execution of sale deed and in the said proceedings also the respondent remained ex parte and the sale deed was executed by the Court and thereafter he filed another petitioner in R.E.P.No.76 of 2007 for delivery of the property in pursuance of the sale deed executed by the Court and in that R.E.P. also the respondent remained ex parte and delivery was ordered, effected and thereafter recorded. Then the E.P. got terminated on 12.07.2007.
2. During the above said execution proceedings, the respondent filed petition in I.A.No.21 of 2008 to set aside the ex parte decree in O.S.No.125 of 2005 passed on 20.8.2006, along with an application to condone the delay of 361 days in filing such application in I.A.No.207 of 2007 under Section 5 of the Limitation Act. The said petition was dismissed by the learned Principal Subordinate Judge, Salem and he preferred revision before this Court in CRP NPD No.3482 of 2007 and this Court on 05.12.2007 allowed the Civil Revision Petition condoning the delay of 356 days (subsequently corrected). Then I.A.No.21 of 2008 was taken for enquiry, which was hotly contested by this petitioner. Both sides adduced evidence oral and documentary and eventually the learned Principal Subordinate Judge, allowed the application setting aside the ex parte decree on 28.06.2005. This order is being carried before this Court in the present revision.
3. In the affidavit the respondent has stated that the agreement of sale is forged document; that he did not receive any notice nor summons from the Court in the suit; that he had no knowledge with regard to the filing of the Civil Suit and he never received summons nor notice in the suit; that the plaintiff manipulated the documents and the Court passed an ex parte decree; that now only he came to know through neighbours that the plaintiff had obtained ex parte decree in the suit on the basis of created sale agreement dated 28.2.2005 to grab the suit property from him by misusing process of law and immediately he contacted his advocate and as per his direction he filed this present petition; that his absence on 28.6.2005 is neither wilful nor wanton but he was prevented by the above said reasons and that ex parte decree may be set aside.
4. In the counter filed by the respondent, the allegations in the affidavit have been controverted and further stated that the defendant conveniently refused to receive, though intimation given to him about the notice by the postal department and hence it was returned without service. In the pre-suit stage, summons from the Court was taken to him through Court and by post, but the defendant refused to receive summons, so also by registered post, prompting the Court to pass ex parte decree and that the defendant is not diligently prosecuting the case, on the other hand he abused the process of law to his own convenience. The plaintiff filed E.P. for execution of sale deed and after got it executed, he filed E.P. for delivery and delivery was also effected and recorded and it was also terminated. The entire proceedings ended and the case cannot be re-opened for any reasons. The defendant has to seek remedy only in a separate proceedings and hence this petition has to be dismissed.
5. The learned Principal Subordinate Judge, Salem allowed the application by observing that the evidence of Junior Bailiff, who was deputed to effect service of summons on the defendant, did not deliver it properly, rendering his service invalid and hence ex parte decree has to be set aside.
6. Mr. T. Karunakaran, learned counsel for the petitioner would strenuously contend that the bailiff has been examined to establish due service of summons on the respondent and that Court records would amply show that the summons through Court and Post were refused and the ex parte decree was passed.
7. Conversely, Mr. V.N. Rajendran learned counsel for the respondent would submit that the evidence of Junior Bailiff was not at all accepted by the court below for the reasons contained in the order challenged before the Court and the observations of the Court below have been based on the appreciation of his oral evidence and there is no valid ground to disturb the order.
8. Even though the oral evidence of both parties are available on record, that of R.W.2, the Court Bailiff, who was deputed for service of summons on the respondent, plays pivotal role in reaching a definite conclusion in this proceedings. It is the usual procedure that when the Junior Bailiff is deputed to serve summons on the defendant or respondent in a court proceedings and in case if he refused to receive the same, the Junior Bailiff ought to affix the summons on the door of his residence or establishment and the same has to be acknowledged by witnesses who are available neighbourhood and then he has to affirm these events in his affidavit, to be returned to the Court.
9.(i) On the reverse of the Court process, R.W.2 has endorsed that while he proceeded to the address found in the summons and met the defendant, identified by the plaintiff and asked him to receive the summons and plaint copy, he refused and hence he affixed the summons on the outer door of his residence, after getting the signature of the plaintiff to that effect and he returned back the summons. But his oral testimony before the Court was otherwise. He says that when he went to the defendant's house, defendant was inside the house and he asked him to receive summons, but he refused and so, he told him that it would be affixed on the door, but the defendant replied that it should not be affixed and so he dropped the summons through the door and asked the neighbour to attest the endorsement, but he also refused to sign.
9.(ii) But in the cross examination he says that since he did not have the gum to affix the summons, he kept the same on the shutter door and he has not mentioned in the return that the neighbour refused to sign, despite his request. There is a world of difference between his endorsement on the summons and oral evidence. A careful scrutiny of his deposition would crucify the contents of endorsement on summons. The necessary corollary thereof would be, the service was not proper. The observation of the Court below that since the evidence of R.W.2 does not show that he affixed the summons on the door of the residence of the defendant, it cannot be stated that summons was duly served, is proper.
10. The learned counsel for the respondent would strongly place reliance upon a decision of the Supreme Court in AIR 2002 SC 2370 [Sushil Kumar Sabharwal v. Gurpreet Singh and others] specifically on this point, in which the following guidelines have been formulated:
"8. We find several infirmities and lapses on the part of the process-server. Firstly, on the alleged refusal by the defendant either he did not affix a copy of the summons and the plaint on the wall of the ship or if he claims to have done son, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall should have been witnessed by persons who identified the defendant and his shop and witnessed such procedure. The endorsement shows that there were no witnesses available on the spot. The correctness of such endorsement is difficult to believe even prima facie. ....
... ... ..."
11. The Apex Court further proceeded to hold that the provisions contained in Order 9, Rule 6 of C.P.C. are pertinent which contemplate three situations;
(i) When summons duly served
(ii) When summons not duly served, and
(iii) when summons served but not in due time;
that the provision casts an obligation on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being 'proved' that the summons was duly served when and when alone, the Court is conferred with a discretion to make an order that the suit be heard ex parte.
12. When the Court Bailiff returns a summons with an endorsement since the defendant or respondent refused to receive the summons, he has to affix the same on the door or his work place and it must be attested by witnesses, further, when he is called to the Court to render evidence he has to vouchsafe the contents in the endorsement by stating that he actually went to the house, saw the defendant or respondent in person, asked him to receive the summons but he refused and hence he affixed the same as per procedure and got signatures of the neighbours. If the neighbours also refused to put their signatures, he has to put it in writing in the endorsement itself and then return the same to the Court. If the above procedures are not followed by a Court Bailiff and in case while he examined before the Court as to the said events, he has to depose about them and establish the facts, if not, the court would be left with no option except to hold that the summons was not duly served.
13. The present case is a classical instance to come out with an opinion, that there was no due service of summons. At the cost of repetition, it is stated that the oral evidence of the Court Bailiff is entirely different from the contents of his endorsement on the summons. The discrepancies found in the above said materials would pave way to arrive at a decision that there was no proper service of summons.
14. In such view of this matter, it is held that the trial court has rightly set aside the ex parte decree, dissecting the evidence of R.W.2. This Court does not find any wrong in the order challenged before this Court, which deserves to be confirmed and accordingly it is confirmed. The Civil Revision Petition is devoid of merits which suffers dismissal.
15. In fine, the Civil Revision Petition is dismissed. No costs. Connected M.P. is closed.
Ggs To The Principal Subordinate Judge, Salem