Final Order 7

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF AASHISH GUPTA, DISTRICT JUDGE-01, NORTH-
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
MISC DJ 174/25
TALAT JABEEN Vs. MANZOOR ANSARI
02.09.2025
Present: None for applicant/D-3.
Ld. counsel for non-applicant/plaintiff.
O R D E R
1. The present proceedings arises from CS no. 199/19 which was
decided vide judgment and decree dated 17.02.2025. The applicant
was D-3 in the said suit and has preferred various applications
(including application u/O IX Rule 13 CPC) against the said
judgment and decree. I proposed to dispose the said applications vide
this order.
Application u/s 5 CPC of Limitation Act.
2. Applicant/D-3 is before this court contending that she was not served
with the summons of the suit as per law and thus, the decree in
question i.e. dated 17.02.2025 should be set aside u/O IX Rule 13
CPC.
3. As per applicant/D-3 herein, she became aware of the ex-parte
judgment and decree in this case on 26.04.2025 when the warrants of
possession were executed in the execution proceedings against D-3.
The present petition has been preferred on 13.05.2025. Applicant
claims that even though she became aware about the decree in
question on 26.04.2025 only, out of abundant caution, she has filed
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the present application for condonation of delay.
4. Not much contest was made on this application. If, for the sake of
arguments, it is taken that applicant became aware about the decree
in execution proceedings only (i.e. on 26.04.2025) there is no delay
in moving of this application. But, for reasons to be recorded while
deciding the main application moved u/O IX Rule 13 CPC, the said
contention of applicant is incorrect. Since I propose to dispose off
the main application on merits, the present application looses its
relevance and is thus, disposed off.
Application u/O IX Rule 13 CPC.
5. Before I come to the various contentions of the applicant, I may note
that plaintiff had sued the defendants
inter alia for possession of a
property along with a declaration that a chain of documents be
declared as null and void. Plaintiff succeeded in her claim vide
judgment and decree dated 17.02.2025.
6. After possession was taken from D-3 during execution proceedings,
D-3 has come to this court contending that she was never served with
summons of the present suit. Her contention in this regard is
contained in para 9 and 10 of the present application which reads as
under:
“9. That the service of summons has been managed by the Plaintiff
and no proper or valid service was ever effected upon the
applicant/defendant no.3. The claim that service was affected through
her daughter, Ms. Shaheen, is false and misleading.
10. That the provisions contained under order 5 CPC concerning the
manner in which the service should be affected upon the defendant.
Order 5 Rule 12 CPC prescribes that wherever it is practicable service
should be made on the defendant in person. Though Rule 15
prescribes that in the absence of the defendant the service may be
affected on any adult member of the family but only those
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circumstances where there is no likelihood of defendant being found
at the residence within a reasonable time. Even if for the sake of
arguments, it is presumed that the services of the summons were
affected to the daughter of the applicant/defendant No.3 namely
Shaheen (though denied) then also as per Rule 15 of Order 5 the same
cannot be construed as a Valid as there is no mentioning of the
whereabouts of the defendant no.3 at the time of the alleged service
upon the daughter of the applicant/defendant no.3. Furthermore, no
document/ID Proof has been taken at the time of serving the
summons only the signatures were appended on the summons report.
It is therefore, submitted that the processserver has committed
illegality while reporting that the service is affectedto the daughter of
the applicant/defendant no.3 namely Shaheen.”
(emphasis supplied)
7. It is the case of applicant that the summons of suit served on D-3’s
daughter Shaheen is not proper service and the process server did not
comply with the provisions of Order V Rule 12 r/w Order V Rule 15
CPC. On that count, as per applicant, the judgment/decree in
question should be set aside.
8. On the other hand, counsel for non-applicant/plaintiff argued that
there was due service of process on D-3 and prays for dismissal of
the application.
9. Heard. Record perused.
10.Perusal of record shows that D-3/applicant was sought to be served
at two addresses i.e. Address-1 (H. No. 1254, Gali No. 14, Rajiv
Gandhi Nagar, New Mustafabad, Delhi-94) and Address-2 (D-1/108-
G, Nehru Vihar, Delhi-110094) by the plaintiff. Thus, plaintiff gave
two addresses in the memo of parties of suit no. 199/19 qua D-3.
11.Perusal of Trial Court Record would show that when the concerned
process server visited the first address of D-3, it was reported there
by some person that D-3 had already sold the said property and now,
she is residing at D-1/108, Nehru Vihar, Delhi-110094 (i.e. at
Address-2 noted above). Eventually, as per report of process server
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dated 18.09.2019, process server went to the said address-2 of D-3
where one Shaheen was found and she claimed herself to be the
daughter of D-3. She then received the summons along with the copy
of the entire paper book. This was on 18.09.2019. It is pertinent to
note that as a proof of service, said Shaheen even appended her
signatures on the said process sent at both the addresses of D-3.
12.It is not disputed before this court that Shaheen is actually the
daughter of D-3 and the signatures found on both the processes i.e.
process sent at the first address (which was eventually served at the
second address); and the process sent at the second address are of
Shaheen. It is also not disputed that at that time i.e. on 18.09.2019,
Shaheen was an adult member of D-3’s family and was residing with
D-3. Thus, from the record, it is an admitted position by D-3 that
Shaheen is her daughter and service was duly made on Shaheen at
H. No. D-1/108-G, Nehru Vihar, Delhi-110094/Address-2 placed on
record by plaintiff.
13.Again, it is nowhere disputed in the present application that
defendant was not living at the said address or that her daughter
Shaheen was not present or lives with her at the said address on
18.09.2019.
14.In sum and substance, what transpires from the above is that
summons in the main suit bearing no. CS 199/19 were served on D-3
through her daughter Shaheen at the above noted second address on
18.09.2019.
15.Now, it is the contention of applicant/D-3 that in the summons
served, there is no recording of fact that where was D-3 at the time of
service of summons and the fact that there was no likelihood of D-3
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being found at her address within a reasonable time. It was argued
that only after the aforesaid twin conditions were fulfilled, could the
summons be served on her daughter.
16.I am not inclined to accept the said argument raised by the
applicant/D-3. In the present case, admittedly, process server had
served the summons on the daughter of D-3 on 18.09.2019 at
Address-2 of D-3. D-3 does not dispute that Shaheen/her daughter is
an adult family member of D-3 who was residing with her on the
said date.
17.Under Order V Rule 12 CPC, it is laid that whenever it is practicable,
service shall be made on the defendant in person. This means that at
the first instance, a service is required to be made on the defendant in
person. But, it is not unheard that many a times, a given defendant is
not available or may avoid service and therefore, if endeavor has
been made by concerned process server to serve the defendant in
person (u/O V Rule 12 CPC), law allows that such service can be
made on any adult member of the defendant’s family who is residing
with him/her.
18.Order V Rule 15 CPC does not say that finding has to be returned in
writing by the process server as to where the defendant was when the
service was sought to be served and that it was not likely that the
defendant may be found at his residence in the reasonable time. The
said rule only lays that in case defendant is absent from his residence
at the time when service is sought to be effected on him at his
residence and there is no likelihood of he being found within a
reasonable time, then service can be effected on an adult male/female
member of the said defendant residing with him.
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19.Thus, it is only to the satisfaction of process server which is
sufficient to cause the said process server to effect the service on the
adult family member of the defendant. The law does not mandate
that such satisfaction of process server should also be reduced in
writing by him.
20.In the present case, the process server has gone to both the addresses
of defendant and found that D-3 would be available at the second
address i.e. D-1/108-G, Nehru Vihar, Delhi-110094. When he
inquired about D-3 at the said address, one Shaheen presented herself
who claimed to be the daughter of D-3. As already noted, D-3 does
not dispute the fact that Shaheen was indeed her daughter and
competent u/O V Rule 15 CPC to receive the summons. When the
law does not say that the whereabouts of defendant at the time of
service should be found out by the process server, D-3 cannot argue
today that such fact should have been found out and recorded by the
concerned process server.
21.The reason for the same is not difficult to discipher. It is usually
impossible for the process server to find out as to where a defendant
may or may not be at the time when the summons are sought to be
served. Thus, in law, the process server is not required to make such
an inquiry about the whereabouts of the person concerned and say in
his report as to where the defendant was. To expect the same is
beyond the mandate of Order V Rule 15 CPC.
22.Yet again, the law u/O V Rule 15 CPC also does not say that the
process server has to record a finding that the defendant would not
be available for service at his/her residence within a reasonable time.
Once a service was sought to be made and defendant did not come
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forward to receive it; and no reasonable time was indicated to the
process server when defendant may be available to take service,
process server can make service of process on an adult family
member of such a person u/O V Rule 15 CPC. In my humble
opinion, in this case, process server tried to serve D-3 at both her
addresses and D-3 did not come forward to take service; it was in
such circumstances that he correctly effected the service on the
daughter of D-3 on 18.09.2019.
23.Eventually, he prepared his report and even annexed endorsement
u/O V Rule 18 CPC qua the manner of service on the back side of
the process.
24.The fact that process server went from Address-1 to Address-2 of
D-3 (as recorded in the copy of summons available on record) clearly
shows that the process server made diligent efforts to actually reach
to D-3 on both her addresses and thus, the allegations that the service
has been managed by plaintiff is not borne out from the record.
25.Applicant/D-3 is conspicuously silent about the fact that what did
D-3’s daughter Shaheen do with the summons served on her for and
on behalf of D-3. When the said summons were actually served on
D-3’s daughter Shaheen, it was her duty to bring the same to the
notice of D-3. D-3 does not say anything in her application as to why
Shaheen did not bring the same to D-3’s notice, presuming that the
summons were not brought to D-3’s notice. Be that as it may, it has
to be taken in the facts of present case that D-3 was duly served in
this case through her daughter Shaheen.
26.There is nothing before me to disbelieve the veracity of facts claimed
by the process server in his report. Process server was a stranger to
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dispute between the parties and cannot be accepted to have known
the name of D-3’s daughter prior to service. There is no such
allegation made in the present application. D-3 has made bald and
omnibus claim that plaintiff has managed service in this case. The
same appears to be a hollow claim as it appears from the record that
court process was duly served on D-3 through her daughter as per
law.
27.Thus, it appears from the record that D-3 had notice of the suit in
question on 18.09.2019 itself and she herself chose to suffer an ex-
parte decree. Once, it is found that D-3 was duly served with the
summons of the suit in question and had sufficient notice, there is no
ground made out to set aside the ex-parte decree against D-3 u/O IX
Rule 13 CPC. Consequently, the present application of D-3 seeking
setting aside of ex-parte judgment and decree dated 17.02.2025 on
the ground of non-service of summons is devoid of any merit and is
thus, liable to be dismissed. It is ordered accordingly.
28.In view of the fact that main application of D-3/applicant u/O IX
Rule 13 CPC has been dismissed, all the other pending applications
are disposed off as having become infructuous.
29.Copy of this order be placed in the main suit file bearing no. CS
199/19 and this file be consigned to record room along with main
suit file.
Announced in the Aashish Gupta
open Court on 02.09.2025 District Judge-01, North-East District,
Karkardooma Courts, Delhi
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