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2002 (4) TMI 966

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..... ial Court. The Civil Revision preferred by the tenant met with the same fate. The tenant has filed this appeal by Special Leave. A perusal of the record of proceedings shows that the process server was entrusted with summons for service on the defendant-tenant. The date of hearing appointed was 23.2.1993. According to the process server, Narinder Jeet Singh, he went to the shop of the tenant-appellant on 22.2.1993 and tendered to him the summons accompanied by a copy of the plaint. The tenant refused to accept the summons. Then, he returned the summons alongwith an endorsement of refusal on the back of summons to the Court on 23.2.1993. On 23.2.1993, the Court recorded default in appearance of the defendant-tenant and proceeded ex-parte .....

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..... d shop . His deposition runs counter to his own endorsement made on the back of the summons, according to which, on refusal by the defendant to accept the summons copy of the plaint alongwith summons was returned to the Court. Rules 17 and 18 of Order 5, C.P.C. which lay down the procedure of service when the defendant refuses to accept service and the endorsement to be made by the serving officer, read thus: 17. Procedure when defendant refuses to accept service, or cannot be bound.-Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, 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 w .....

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..... o, 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. The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. One can understand refusal by unwilling persons requested by the process wherever to witness the proceedings and be a pa .....

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..... h has opined that even if the summons was not duly served, the appellant was aware of the pendency of the suit and, therefore, the application under Order 9, Rule 13 C.P.C. did not have any merit. The High Court has over looked the second proviso to Rule 13 of Order 9 C.P.C., added by the 1976 Amendment which provides that no court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. It is the knowledge of the 'date of hearing' and not the knowledge of 'pendency of suit' which is relevant for the purpose of the .....

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..... endant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the Court to satisfy itself on the service of summons. Any default or casual approach on the part of the Court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex- parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of his. If only the Trial Court would have been conscious of its obligation cast on it by Order 9 Rule 6 of the C.P.C., the case would not have proceeded ex-parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation. Be .....

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