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G.C. Cones & Tube Manufacturing Co. v/s Nursingh Paper & Oil Mill Pvt. Ltd.


Company & Directors' Information:- R K MANUFACTURING CO LTD [Active] CIN = L27209WB1984PLC037758

Company & Directors' Information:- R K MANUFACTURING CO LTD [Active] CIN = L27209GJ1984PLC098951

Company & Directors' Information:- G C TUBE PRIVATE LIMITED [Active] CIN = U25209DL2000PTC105229

Company & Directors' Information:- INDIA MANUFACTURING CORPORATION PRIVATE LIMITED [Active] CIN = U24100DL2010PTC198947

Company & Directors' Information:- S I A MANUFACTURING PRIVATE LIMITED [Active] CIN = U74120UP2013PTC057004

Company & Directors' Information:- S K M MANUFACTURING PRIVATE LIMITED [Active] CIN = U17200DL2011PTC223768

Company & Directors' Information:- S T S MANUFACTURING PRIVATE LIMITED [Active] CIN = U28112TZ2006PTC012940

Company & Directors' Information:- TUBE MILL INDIA PRIVATE LIMITED [Strike Off] CIN = U52393WB1962PTC025507

Company & Directors' Information:- A S P MANUFACTURING COMPANY PVT LTD [Active] CIN = U27109WB1991PTC051461

Company & Directors' Information:- A K MANUFACTURING PVT LTD [Active] CIN = U51909MN1988PTC003110

Company & Directors' Information:- I T A C (INDIA) MANUFACTURING CO LTD [Dissolved] CIN = L51109WB1982PLC034689

Company & Directors' Information:- G B PAPER MILL PVT LTD [Strike Off] CIN = U21012PB1991PTC011831

Company & Directors' Information:- J D MANUFACTURING CO PVT LTD [Active] CIN = U51909WB1996PTC079825

Company & Directors' Information:- A S P MANUFACTURING COMPANY PVT LTD [Not available for efiling] CIN = U36900WB1991PTC005146

Company & Directors' Information:- S V K PAPER CONES PRIVATE LIMITED [Active] CIN = U45202PB2006PTC030190

Company & Directors' Information:- B R D MANUFACTURING PRIVATE LIMITED [Active] CIN = U51109WB1997PTC085188

Company & Directors' Information:- R J S MANUFACTURING PRIVATE LIMITED [Active] CIN = U27104DL1997PTC090521

Company & Directors' Information:- T R PAPER MILL LTD [Strike Off] CIN = U21012PB1995PLC016113

Company & Directors' Information:- B U MANUFACTURING PVT LTD [Active] CIN = U51109WB1982PTC035271

Company & Directors' Information:- I H TUBE MILL PRIVATE LIMITED [Strike Off] CIN = U27107PB1999PTC023044

Company & Directors' Information:- M M MANUFACTURING PVT LTD [Active] CIN = U26922WB1993PTC059837

Company & Directors' Information:- J. C. MANUFACTURING INDIA PRIVATE LIMITED [Active] CIN = U21099WB2020PTC236821

Company & Directors' Information:- S B MANUFACTURING PRIVATE LIMITED [Strike Off] CIN = U31506WB1999PTC088567

Company & Directors' Information:- K. V. J. MANUFACTURING INDIA PRIVATE LIMITED [Active] CIN = U29308DL2017PTC320213

Company & Directors' Information:- A T E MANUFACTURING CO PRIVATE LIMITED [Amalgamated] CIN = U28999GJ1973PTC002296

Company & Directors' Information:- J P MANUFACTURING AND CO PVT LTD [Strike Off] CIN = U51226WB1982PTC034927

Company & Directors' Information:- D. K. MANUFACTURING (INDIA) LIMITED [Strike Off] CIN = U37200WB2011PLC170403

Company & Directors' Information:- S M MANUFACTURING COMPANY PRIVATE LIMITED [Active] CIN = U34300HR1997PTC057824

Company & Directors' Information:- G K MANUFACTURING PRIVATE LIMITED [Strike Off] CIN = U34300PB2012PTC036073

Company & Directors' Information:- P & B MANUFACTURING PRIVATE LIMITED [Active] CIN = U29254TN2010PTC076696

Company & Directors' Information:- B. V. H. MANUFACTURING INDIA PRIVATE LIMITED [Active] CIN = U74999GJ2018FTC100633

Company & Directors' Information:- R A MANUFACTURING COMPANY PRIVATE LIMITED [Strike Off] CIN = U36900HR2012PTC047669

Company & Directors' Information:- J R TUBE LTD [Strike Off] CIN = U27104WB1989PLC046119

Company & Directors' Information:- S K CONES PVT LTD [Strike Off] CIN = U22122GJ1982PTC005472

Company & Directors' Information:- OIL MANUFACTURING CO PRIVATE LIMITED [Active] CIN = U51900MH1957PTC010873

Company & Directors' Information:- A K R MANUFACTURING PRIVATE LIMITED [Active] CIN = U19200RJ2012PTC041177

Company & Directors' Information:- C N C MANUFACTURING PRIVATE LIMITED [Strike Off] CIN = U64204DL2015PTC281449

    Civil Misc. Appeal No. 1802 of 2000

    Decided On, 26 March 2014

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE ALOK SHARMA

    For the Appellant: Nitin Jain, Advocate. For the Respondent: Pawan Kumar Sharma, Advocate.



Judgment Text

Alok Sharma, J.

This misc. appeal under Order 43 Rule 1(d) CPC has been filed by the appellant defendant (hereinafter 'the defendant') against the order dated 29-9-2000 passed by the Additional District Judge No.1 Alwar dismissing the defendant's application under Order 9 Rule 13 CPC for setting aside the ex-parte decree dated 13-2-1998 in favour of the plaintiff-respondent (hereinafter 'the plaintiff') in a money suit for recovery of a sum of Rs.66,166.38.

2. Mr. Nitin Jain, learned counsel for the defendant has stated that summons were not served on the defendant. From the order-sheets of the trial court it appears that on summons not being served on the defendant through the ordinary process and being returned, the plaintiff was directed to file PF and notices along with registry charges. It however transpires from the order sheets of the trial court that the plaintiff failed to file PF and notices along with registry charges for service of the defendant and the orders of the trial court were not complied with by the plaintiff. Thereafter all of a sudden on 30-11-1996 an application under Order 5 Rule 20 CPC was moved by the plaintiff before the trial court for substituted service. This application was allowed on the same day and summons were published in news paper "Amar Ujala, Agra edition on 6- 4-1997 as the said paper allegedly had wide circulation in the area i.e. Hathras where the defendant resided. Appearance having not been made by the defendant in spite of summons published in news paper Amar Ujala, ex-parte proceedings were drawn against the defendant on 31-5-1997. Following the evidence of the plaintiff, ex-parte decree was passed on 13- 2-1998. The defendant in these circumstances moved an application under Order 9 Rule 13 CPC on 17-8-2000 for setting aside the ex-parte decree dated 13-2-1998 stating therein that he came to know of the exparte decree only on being informed by the manager of the plaintiff company on 16-8-2000 of the execution application. Application under Order 9 Rule 13 CPC was thus moved on 17-8-2000, which has been dismissed by the trial court on 29-9-2000. Hence this appeal.

3. Learned counsel for the defendant has submitted that the ex-parte decree dated 13-2-1998 was liable to be set aside solely on the ground that defendant was not served as warranted in law. It was submitted that the order sheets of the trial court clearly indicates that subsequent to non service of defendant in the normal course, the trial court vide order dated 6-3-1995 had directed the plaintiff to file PF and notices along with registry charges for service on the defendant. The said order was not complied with by the plaintiff as is apparent from the order dated 24-9- 1995, as the plaintiff failed to file PF and notices along with registry charges. Counsel submitted that in these circumstances the suit in fact ought to have dismissed under Order 9 Rule 9 CPC for non compliance with the orders of the trial court by the plaintiff. Counsel submitted that in stead the learned trial court erred in entertaining the plaintiff's application under Order 5 Rule 20 CPC for substituted service of the defendant even without recording its satisfaction that the defendant was keeping out of the way for the purpose of avoiding service, or that for any other reason the summons could not be served on the defendant in the ordinary way. The trial court oddly proceeded to peremptorily direct substituted service by way of publication. Counsel further submitted that the trial court ought to have directed the defendant to exhaust processes for personal service as provided for in law before directing substituted service by way of publication which is a weak mode of service. Reliance has been placed on a judgment of this court in case of Iqbal Kaur v. Jagdish Prasad [(2013)3 RLW (Raj.) 1995], wherein this court has held that when the trial court without ascertaining the proper attempts to effect personal service on the defendant ordered for substituted service through news paper contrary to the provisions of Order 5 Rules 11, 17 and 20 CPC, there could be no presumption of service and ex-parte decree consequent to such substituted service was liable to be set aside. Reliance has also been placed on a judgment of this court in case of Harbhajan Singh v. LRs of Gardhara [(2010)4 CCC 685], wherein this court held that service by publication/substituted service could be resorted to only when the court recorded its satisfaction that there was reason to believe that the defendant was keeping out of way for the purpose of avoiding service or that for any other reason the summons could not be served on him in ordinary way. Reliance has also been placed on a judgment of the Hon'ble Supreme Court in case of Smruti Pahariya v. Sanjay Pahariya [(2009) (4) RLW (SC) 3070], wherein the Hon'ble Supreme Court has held that directions for substituted service under Order 5 Rule 20 CPC could be passed only when the court was satisfied that there was reason to believe that the defendant was keeping out of the way for the purpose of evading service, or that for any other reason the summons could not be served on him in the ordinary way.

4. Learned counsel for the defendant has submitted that in the instant case the learned trial court has not recorded its satisfaction that it was not possible to serve the defendant in the ordinary way or that the defendant was deliberately keeping himself out of the way for the purpose of avoiding service or that for any other reason the summons could not be served on the defendant personally in the ordinary course. On the contrary it was the plaintiff, who was in default in failing to file PF and notices along with registry charges as directed by the trial court. Learned counsel for the defendant has submitted that the trial court while dealing with the application of the defendant under Order 9 Rule 13 CPC failed to address this important aspect of the matter and misdirected itself in dismissing the defendant's application.

5. Learned counsel for the plaintiff has supported the impugned order dated 20-9-2000 passed by the trial court.

6. Heard learned counsel for the parties and perused the impugned order dated 20-9-2000.

7. The law is well settled that substituted service is an exception to be resorted to in the exceptional circumstance of the defendant avoiding or not capable of being served personally in the ordinary course. Provisions of Order 5 Rule 20 CPC make it clear that resort to substituted service can be had only in exceptional circumstances on the court coming to a conclusion from the material on record that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons could not be served in the ordinary way. The order-sheets of the trial court in the instant case indicate that the plaintiff had been directed to file PF and notices along with registry charges for service on the defendant. This order of the trial court was not complied with by the plaintiff and it appears that plaintiff did not file PF and notices along with registry charges for service on the defendant. In these circumstances the trial court could possibly have dismissed the suit of the plaintiff by resort to Order 9 Rule 9 CPC for reason of non compliance of its order entailing lack of intention to prosecute the suit. Yet on an application under Order 5 Rule 20 CPC peremptorily made by the plaintiff on 30-11-1996, without recording its satisfaction as mandated under Order 5 Rule 20 CPC that the defendant was avoiding service of summons, the trial court proceeded to direct service of the defendant through publication. That in my considered opinion was an irregular exercise of jurisdiction by the trial court.

8. I do not intend to address the question of circulation of the news paper Amar Ujala Agra Edition in Hathras where the defendant reside, in view of the fact that no application was moved by the defendant before the trial court seeking to lead evidence on this score.

9. However in view of the fact that service on the defendant by publication of summon with reference to Order 5 Rule 20 CPC was peremptorily directed by the trial court without recording its satisfaction that the defendant was keeping himself out of the way for the purpose of avoiding service or it was impossible to serve the defendant personally in the ordinary course, I would set aside the conclusion of the trial court that the defendant was duly served, and had not appeared in spite of service and was thus deserving of an ex-parte decree which could not be set aside of his Order 9 Rule 13 CPC application. Consequently the impugned order dated 31-5-1997 making proceedings ex-parte against the defendant in the plaintiff's money suit as also the ex-parte decree dated 13-2-1998 would be set aside. Setting aside of the impugned order dated 31-5-1997 as also the ex-parte decree dated 13-2-1998 would however be conditional upon the defendant depositing an amount Rs.1,50,000/- by way of FDR in the name of Additional District Judge No.1, Alwar. Payment under the FDR would abide t

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he judgment/decree in the suit. The trial court is directed to expeditiously decide the money suit laid by the plaintiff after giving due opportunity to the defendant and in no event later than eight months from the receipt of a certified copy of this order. Both the parties are directed to appear before the Additional District Judge No.1 Alwar on 21-4-2014 along with a certified copy of this order. 10. Adjournments in the suit if any whenever sought shall be entertained only on an application in writing and allowed only if good reason is found by the trial court. The court shall abide by the decision of the Hon'ble Apex Court on the issue of adjournments as detailed in the case of Shiv Cotex v. Tirgun Auto Plast (P) Ltd. [(2011) 9 SCC 678], where the Hon'ble Supreme Court has held that adjournment should be ordinarily limited to three/four times in the life of a suit. 11. The appeal stands allowed accordingly. Stay application needs no address. Appeal allowed.
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