Excelsior Correspondent
Srinagar, Dec 3: High Court has set aside the trial court order and recorded that the trial court before closing the right of defense to another party in a civil suit should satisfy itself fully as to whether the party of the other side has been served with summons or not.
Justice Sanjay Dhar has allowed the petition of one Abdul Qayoom Sheikh against whom the trial court closed the right to file reply in two suits filed against him on the ground that despite lapse of statutory period none has appeared and contested the suit on his behalf.
The advocate Irfan Khan pleaded that after the grant of ex-parte interim order, the opposite party of the petitioner-Sheikh filed affidavits stating therein that they have sent the copy of the interim order to the other side (Sheikh) through registered post but no acknowledgement card or proof of service has been produced by them so as to infer that the defendant-Sheikh had gathered knowledge about filing of the suits.
“In the face of the position, emanating from the record of the trial court, it can by no stretch of reasoning be interfered that the defendant-Sheikh was properly served in any of the two suits or that he had authorized Suresh Kumar, Advocate to appear on his behalf particularly when no Vakalatnama was filed by the said Advocate before the trial Court”, Justice Dhar said.
Justice Dhar as such while allowing the plea of Sheikh against the trial court order recorded that unless, a trial Court is fully satisfied with the service of summons of a suit upon the defendant (other party), it will not be open to the said Court to take resort to stringent provisions contained Civil Procedure Code and close the right of the defendant (other party) to file written statement/reply after the expiry of 120 days.
“Closure of right of a defendant (other party) to file written statement has serious consequences upon his civil rights, therefore, provisions contained in the CPC have to be strictly construed and the expression ‘service of summons’ has to be taken colour from the provisions contained in the CPC” , the court recorded.
The court has further added that unless the requirements specified in Rules 9 to 30 of Order 5 of the CPC regarding service of process upon the defendants are not fully satisfied, it cannot be presumed by a civil Court that service of summons has been affected upon the defendants within the meaning of Rule 1 Order 8 CPC.
The court said that there is no material on record of the trial Court to show that the defendant/ the petitioner-Sheikh was ever served with the summons of the suit. Therefore, it was not open to the trial Court to presume that he had the knowledge of filing a suit by placing reliance upon the appearance of Suresh Kumar, Advocate who was never duly authorized by the defendant to appear on his behalf. The impugned orders passed in two suits on 19.09.2023 are, therefore, unsustainable in law and deserve to be set aside.
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