HARENDER SINGH (HAWALDAR)  Vs KAVIT KUMAR -Judgment by Delhi High Court

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10th January, 2024
+ C.R.P. 118/2022
HARENDER SINGH (HAWALDAR) ….. Petitioner
Through: Mr. Nishant Khatri, Advocate.
versus
KAVIT KUMAR ….. Respondent
Through: Mr. H.S. Sodhi, Advocate.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
DHARMESH SHARMA, J. (ORAL)
CM APPL. 18981/2023

1. This is an application seeking condonation of delay of 58 days
in filing the revision.
2. For the reasons stated in the application and in the interest of
justice, the application is allowed and delay in filing the revision is
condoned.

C.R.P. 118/2022

3. The petitioner, who was the defendant in suit bearing No.
1147/2018, has filed the present Civil Revision Petition under Section
115 of the Code of Civil Procedure, 19081 challenging the legality and
validity of the impugned order dated 25.04.2022 passed by Mr. Suresh
Kumar Gupta, learned Principal District & Sessions Judge, North-
West District, Rohini Courts, Delhi2 in Misc. DJ No. 138/2021.

1 CPC
2 PD&SJ

4. Shorn of unnecessary details, a summary suit filed against the
petitioner for non-filing of the appearance despite due service of the
summons upon him was decreed vide judgment dated 03.01.2019.
The petitioner/defendant filed an application under Order XXXVII
Rule 4 of the CPC to set aside the impugned decree and the main
plank of his objection was that summons were issued on 12.11.2018
and the process server apparently visited his residential premises on
14.11.2018 for service of the summons but he was not present in the
house and the process server told his wife that she was bound to
receive the Court orders on his behalf. The summons were thus served
upon her in complete contravention of the provisions contained under
Order V Rule 15 of the CPC.
5. It was also the case of the petitioner/defendant that the second
address in the memo of parties was incorrect to the knowledge of the
respondent/plaintiff and his correct address was deliberately concealed
as he was not posted at Rohini Jail but at Mandoli Jail. The said
application was dismissed by the learned PD&SJ setting out the
following reasons:

�16. The question arises whether there is due service of the
summons upon the defendant/applicant and whether he was aware
of the pendency of the suit or not.
17. The summons was issued to the defendant at the correct
address as shown in the memo of the parties. There is no dispute to
this effect. The process server visited the house of the defendant
where his wife met and summons was handed over to her under her
signatures. The process server had gone to his work place but he
was not found posted at Rohini Jail as well as Mandoli jail.

18. The wife of the defendant nowhere disclosed to the process
server that her husband has not been residing with her. The wife
could have refused to take summons in case she was not having
good relations or strained relations with the defendant. Nothing is

brought on record by the defendant that he has stayed at a
particular barrack for a particular period including the period under
reference. He could have placed documentary evidence on record
from his office that he has stayed in a particular barrack for
particular period. There is nothing on the record that defendant has
been residing separately from his wife from a particular date or
month. In the absence of all these particulars, an adverse inference
has to be drawn against him.
19. The process server has visited the Rohini and Mandoli jail for
the service but he was not found posted at both the places. The
place of posting was not disclosed by the officials of Mandoli Jail
to the process server in order to effect the service at that address.
The process server had made an effort to serve the defendant
personally but in vain.
20. The wife is residing with the defendant as nothing is on the
record that both had been living separately from particular month.
The summons was served upon her being the spouse of the
defendant which to my mind is a complete service in terms of Rule
15 of Order 5 CPC.
21. Ld. counsel for the defendant has admitted that execution
petition is pending disposal wherein reply to the application u/o 21
Rule 106 CPC is filed by him. Ld. Counsel has also admitted that
the application to stay the proceedings against the decree has also
been filed by defendant.
22. The copies of the ordersheets, reply and application are filed by
the plaintiff in this application. The perusal of the ordersheets show
that the defendant/JD has appeared with his counsel in the
execution proceedings on 20.09.2019 and 05.12.2019. The present
application has been filed on 15.03.2021. The defendant was very
well aware about the execution proceedings. The execution
proceedings starts when judgment and decree is passed. No
explanation is forthcoming why the defendant did not move the
application u/o 37 Rule 4 CPC on coming to know about the
execution proceedings. There is no explanation to this effect.

23. The perusal of the application to stay the proceedings against
the decree passed by this court shows that he has taken a different
stand for his non appearance in the court on the date of hearing.
Para7 of the application shows that he could not appear in the court
due to demise of his sister in law (bhabhi) wife of Sh. Manjeet
Mathur. He has taken a different stand from the stand taken in the
present application. Both the stands are different. The stand taken
in the application for stay shows that he was aware of the pendency
of the suit where he could not appear due to the demise of his
bhabhi. The two different stands clearly shows that he was aware
of the proceedings of the suit and an afterthought plea has been

taken in this application for the reasons best known to him. He has
not come to the court with clean hands as he is blowing hot and
cold in the same breath.
24. The entire facts show that the summons was duly served upon
him through his wife. He was aware of the proceedings of the suit
but chose not to appear for the reasons best known to him.
25. The defendant has not only to show the special circumstances
in order to set aside the decree or to stay or set aside the execution
but he has also to show by affidavit or otherwise which would
entitle him for leave to defend the suit.
26. The defendant has taken a plea in his application that plaintiff
has forged his signature on friendly loan agreement and he is not
bound by the agreement which is based on forgery.
27. The plaintiff has based his case upon friendly loan agreement
dt.17092017 as well as on receipt dt.17092017. The friendly loan
agreement and receipt bear the signatures of plaintiff and defendant
as well as that of marginal witnesses. The addresses of marginal
witnesses are reflected in the receipt. Nothing is mentioned in the
application that receipt was not signed by him as well as by
marginal witnesses. There is nothing in the application that
signatures of marginal witnesses on both the documents were taken
later on by the plaintiff. There is no explanation why any action
was not taken against the plaintiff immediately after coming to
know of the decree in the execution proceedings which calls for an
adverse inference against the defendant. There does not exist any
special circumstance in favour of defendant. The defendant has
raised a plea of forgery to show that he is entitled for leave to
defend and he can prove it during the course of trial. To my mind,
the bald plea of forgery is not enough to show that he is entitled for
leave to defend as there is no other material on record in support of
said plea. The plea raised by the defendant does not inspire
confidence.
28. In view of the foregoing reasons, there is no merit in the
application. The application u/o 37 Rule 4 CPC of the defendant is
dismissed. It be tagged with the main case file.�

6. Notice of the present revision petition was issued and served
upon the respondent/plaintiff and on appearance, the present revision
petition is opposed.

7. Having heard the learned counsel for the rival parties at the Bar
for a considerable time and on perusal of the record, I find that the
present revision petition is bereft of any merits.
8. First things first, it is borne out from the record that the
respondent/plaintiff, i.e., the Decree Holder filed an execution
application, which, upon notice was served upon the petitioner. A
reply/objection was filed on his behalf wherein under paragraph (7) it
was stated by the petitioner/Judgment Debtor that he could not appear
before the Court on 03.01.2019, on which date, decree had been
passed, due to demise of his sister-in-law (wife of brother Manjeet
Mathur). In the subsequent paragraph viz., paragraph (8) it was
averred by the petitioner/judgment debtor that his father had suffered
attack in the nature of Brain Haemorrhage and remained hospitalized
for 4-5 months. Therefore, he remained busy in discharging his social,
moral and spiritual duties.
9. As brought out by the learned counsel for the respondent/
plaintiff, a new twist in the tale was sought to be introduced by the
petitioner/defendant that although summons have been served upon
his wife on 14.11.2018, he was having strained relationship with her,
which fact has not been substantiated in any manner. Be that as it
may, the main plank of the objection to the passing of the impugned
decree dated 03.01.2019 is that there was no compliance by the
process server with provisions of Order 5 Rule 15 of the CPC. The
said provision is re-produced as under:-

�15. Where service may be on an adult member of defendant�s
family.- Where in any suit the defendant is absent from his

residence at the time when the service of summons is sought to be
effected on him at his residence and there is no likelihood of his
being found at the residence within a reasonable time and he has no
agent empowered to accept service of the summons on his behalf,
service may be made on any adult member of the family, whether
male or female, who is residing with him.
Explanation: A Servant is not a member of his family within the
meaning of this rule.�

10. A careful perusal of the aforesaid provision would show that in
the event of absence of defendant from his residence at the time of
visit of the process server, coupled with no likelihood of the
addressee/ defendant being found at his residence within a reasonable
time, the process server has the discretion to effect service of the
summons upon any adult male or female member of the family,
residing with him. The provision mandates that service on servant
would not be a valid service of summons. The expression �reasonable
time” is not defined in the statute.
11. In the face of admission by the petitioner/defendant that
summons were otherwise duly served upon his wife on 14.11.2018,
the question arises, whether there was �reasonable time” within which
the petitioner/defendant could have made his appearance at his
residence and had received the summons. It would be unconscionable
to assume that on a visit by the process server to the residence of the
defendant, he should be compelled to wait for �unreasonable” period
of time so as to wait for the defendant to come at home and then serve
summons upon him. The expression �within reasonable time” means
and connotes – within the reasonable time of such visit by the process
server. In other words, it means reasonable time within, which, on
visit by the process server, the defendant would be available.

12. I may hasten to add that but for the fact that there is admission
that summons were duly served upon his wife, the learned Trial Court
should ensure examination of the process server so as to satisfy itself
whether or not summons have been duly served upon any adult
member of the family.
13. In the instant matter, what turns the table against the petitioner/
defendant is that the service report, which is Annexure-III, appears to
be duly signed by his wife, Smt. Savita Devi putting date as
�14.11.2018″ and also writing that she is wife of Harender, to whom
on enquries, summons and copy of the plant was delivered. It is also
brought out on the record that a different process server visited Rohini
Jail on 15.11.2018 upon which he was told that the petitioner/
defendant was posted at Mandoli Jail and thereafter he went to
Mandoli Jail No. 12 where he made enquiries about the petitioner/
defendant and he was informed that he was not posted thereat. There
is no challenge by the petitioner/defendant to the said reports.
14. In view of the fact that the petitioner/defendant has tried to
improve over his case at every stage of the matter and lack of
bonafides on his part, this Court finds that no illegality, perversity or
incorrect approach was adopted by the learned PD&SJ in passing the
impugned order. Hence, the present revision petition is dismissed.

DHARMESH SHARMA, J.
JANUARY 10, 2024
Sadique