2025:CGHC:33727 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 219 of 2013 1 - Smt. Poonam Dwivedi W/o Awadhesh Kumar Dwivedi Aged About 36 Years Occupation- Housewife, R/o Vinoba Nagar, Bilaspur, P.S. Tarbahar, Post- Bilaspur, Tah. And Distt. Bilaspur C.G. Defendant No. 2, Chhattisgarh ... Appellant versus 1 - Brijmohan (Died) Through Lrs As Per Hon'ble Court Order Dated 17.12.2024 1.1 - Smt. Krishna Dua D/o Late Sitaram Dua, W/o Late Govind Mahendra Aged About 68 Years R/o In Front Of Bukhari Petrol Pump Link Road Bilaspur, Tahsil And District - Bilaspur Chhattisgarh 2 - Sitaram S/o Late Choudhariram Singh Aged About 76 Years Caste- Kshatriya Thakur, Occupation- Agriculturist, R/o Jarhabhatha, P.S. Civil Line, Post- Bilaspur, Tah. And Distt. Bilaspur C.G. 3 - State Of Chhttisgarh Through- The Collector, Bilaspur, P.S. Civil Line, Post- Bilaspur, Distt. Bilaspur C.G. ---- Respondents For Appellant: Mr. Hemant Agrawal and Mr. Vikash Pandey, Advocates For R 1.1 : Mr. Akath Kumar Yadav, Advocate For State : Mr. Kalpesh Ruparrel, Panel Lawyer For intervenor : Ms. Pragati Pandey on behalf of Mr. Hari Agrawal, Advocates Hon'ble Shri Justice Narendra Kumar Vyas Judgment on Board 17.07.2025 1. This appeal has been preferred by the appellant/defendant No. 2 under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') challenging the judgment and decree dated 12.10.2012 passed by the learned Second Additional District Judge, Bilaspur (C.G.) in Civil Appeal No.60- A/2011, whereby the lower appellate Court has allowed the appeal filed by the respondent/ plaintiff and set aside the judgment and decree dated 30.09.2010 passed by the Civil Judge, Class-II, Bilaspur (C.G.) in Civil Suit No. 73A/2010 whereby the suit filed by the plaintiff was dismissed on the count that the plaintiff has failed to prove that sale deed has been executed by a third person impersonating himself to be his father. 2. The parties to this appeal shall be referred to hereinafter as per their description in the civil suit. 3. This appeal has been admitted by this Court on 05.03.2021 on the following substantial questions of law:- 3.A) Whether the First Appellate Court is justified while reversing the order of the trial Court without deciding the issue whether the suit property in fact was purchased by the father of the plaintiff Sitaram Dua or not? 3.B) Whether the first appellate Court was justified in relying upon certain documents of which there was no original documents produced before the Court below during the course of evidence particularly when there was no application seeking permission to lead secondary evidence? During the midst of the argument following additional substantial question of law emerged for determination of this Court :- 3.C) Whether learned trial Court was justified in proceeding ex- parte against the appellant without following procedure prescribed under Order 5 Rule 17,18 and 19 of the CPC? 4. Brief facts reflected from the record are that 4.A) Plaintiff filed a civil suit before the Civil Judge, Class II, Bilaspur for declaration of sale deed dated 04.03.2009 executed in favour of defendant No. 2 to be null and void and not binding upon him contending that his father owned and possessed Khasra No. 964/1 area 46 decimal and Khasra No. 964/2 area 50 decimal land situated in village Torwa P.No. 22, Tehsil and District Bilaspur (hereinafter referred to as ‘suit property’). The father of the plaintiff expired on 25.12.2009. The father of the plaintiff had executed a Yaddastnama and on the basis of Yaddastnama he is the absolute owner of the suit. As such, he moved an application for mutation before the Tahsildar which is still pending. 4.B) During pendency of the case Defendant No. 1 executed sale deed of suit property to defendant No. 2 without any title or possession through sale deed dated 04.03.2009 impersonating his father Late Choudihari Ram. The defendant No. -2 applied to the Tehsildar's court for mutation on the basis of this sale deed, where, despite the plaintiff's objection, an order was passed on 03.11.2009 to register the name of the defendant No. 2 in the revenue records. It has also contended that the photo affixed on the sale deed and the photo affixed on 22 points are different which reflects that the defendant No. 1 has impersonated his father by recording presence of other person as such prayed for declaring the sale deed to be null and void. 4.C) Learned trial Court issued summons to the defendants for their appearance on 21.06.2010 before the trial Court. Defendant No. 1 was served with the notice but he has chosen not to appear before the trial Court. The summon issued to defendant No. 2 returned with endorsement that uksfVl ysus ls badkj dh Vhi ds lkFk vne rkfye okil izkIr] ftls fd 2 xokg eqUuk flag] Jherh m”kk dh mifLFkfr esa rLnhd fd;k x;k gSA Defendant No. 3 State also did not enter appearance despite service of summons. Learned trial Court adjourned the matter till 4:30 pm and thereafter proceeded exparte against defendants No. 1, 2 and 3 and fixed the matter on 26.06.2010 for argument on application under Order 39 Rule 1 of the CPC. On 26.06.2010, the matter was fixed for order on the said application on 05.07.2010 and on 05.07.2010 the application under Order 39 Rule 1,2 of the CPC was rejected. 4.D) The trial Court thereafter proceeded in the matter and witnesses of the plaintiff were examined on 25.09.2010. The witnesses were not cross-examined as there was no one to cross examine them. On 30.09.2010, learned trial Court dismissed the suit and recorded its finding that the plaintiff is unable to produce original Yaddastnama and Form No. 49 to substantiate his case. 5. Being aggrieved by the dismissal of suit the plaintiff preferred a civil appeal under Section 96 of Civil Procedure Code. Learned first appellate Court issued notice to the respondents for appearance. Pursuant to the notice, the present appellant appeared before the Court and participated in the proceedings. During the pendency of the appeal, present respondent No. 1 Brijmonhan filed an application under Order 41 Rule 27 of the CPC for bringing additional evidence on record i.e. certified copy of the order dated 21.05.2012 passed in favour of the plaintiff’s father, Khasra Panchsala 2011-12, Reen Pustika. Learned first appellate Court allowed the appeal and while allowing the appeal recorded its finding that photograph affixed on the sale deed and the form No. 49 are altogether different which clearly establishes that the plaintiff’s father has not sold the property. Accordingly, the first appellate Court declared the sale deed as null and void. But rejected the application under Order 41 Rule 27 of the CPC by recording its finding that the documents are not necessary for adjudication of the appeal. 6. Being aggrieved with the judgment and decree dated 12.10.2012 defendant No. 2 has filed present Second Appeal. The Second Appeal has been admitted on the substantial questions of law as referred above. 7. Learned counsel for the appellant would submit that learned trial Court has committed irregularity and illegality in proceeding ex- parte against her by not complying with the Order 5 Rule 17,18 and 19 of the CPC. The summons have been returned with the endorsement that the defendants have refused to accept the summons, therefore, the trial Court ought to have examined bailiff and other witnesses instead proceeded exparte which is non-compliance of provisions of law, as such the entire proceeding including judgment passed by the first appellate Court is liable to be set aside. 8. Learned counsel for respondent No. 1 would submit that learned trial Court has rightly proceeded ex-parte and since no cross objection has been filed before the appellate Court regarding exparte proceeding initiated against the appellant therefore, the second appeal is liable to be dismissed. Alternatively, he would further submit that in the worst view of the matter if this Court inclined to remit the matter back to the trial Court, the entire judgment and decree passed by the appellate Court is not absolutely liable to be set aside as there is no challenge to it before the first appellate Court. To substantiate the submission he would refer to the provisions of Order 41 Rule 25 of the CPC which provides that appellate Court may frame issue and refer them for trial to the court whose decree appealed from and would pray for dismissal of the appeal. Page 7 of 14 9. I have heard learned counsel for the parties and perused the record. So far as discussion and finding with regard to first and second substantial question of law are concerned, they are dependable on the outcome of third substantial question of law which goes to the root cause of the lis between the parties therefore, the substantial questions of law No. 3 is decided first. 10. The record of the case would clearly demonstrate that the trial Court has issued summons to the defendants and the summon to defendant No. 1 was served upon his wife, therefore, it is deemed that the summon has been properly served to defendant No. 1. Whereas, in the summon issued to Defendant No. 2, it has returned to the trial Court with endorsement “refused to accept”. The endorsement further provides that the refusal was recorded in presence of two witnesses by the bailiff but the record of the case clearly demonstrates that neither the bailiff was examined nor the two witnesses who were said to have been present at the time of refusal by the appellant were examined to establish the factum of denial by the appellant which clearly establishes that there is a violation of Order 5 Rule 19 of the CPC. The appellant has alleged to have refused to accept the summon of the suit, in such circumstances, it is incumbent upon the concerned trial Court to examine at least the bailiff but the trial Court chosen not to follow the procedure which is illegality and goes to the root cause for deciding the appeal. 11. As such, this Court has to examine whether the compliance of provisions of Order 5 Rule 19 CPC is mandatory in nature or not in the present facts and circumstances of the case, therefore, it is expedient for this Court to go through the provisions of Order 5 Rule 17, 18 and 19 CPC which reads as under: “17. Procedure when defendant refuses to accept service, or cannot be found. 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 when service 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 there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. 18. Endorsement of time and manner of service. The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons. 19. Examination of serving officer. Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.” 12. From perusal of the above provisions, it is crystal clear that in case the defendants refused the summon issued by the Court then it is necessary to examine the Serving Officer to find out whether the defendants have really chosen not to appear or there is manipulation in the service. The examination of serving officer is in conformity with the natural justice and fair play. The provision of Order 5 Rule 19 CPC has come up for consideration before the various High Courts and the Hon’ble High Court of Chhattisgarh. 13. In a decision reported in 2007 (1) CGLJ 314 (Ashok Kumar Sahu Vs. Madhusudan) in the similar situation where the provisions of Order 5 Rule 17 of the CPC were not complied with while submitting report by the process server, this Court has set aside the ex parte decree and held in para 7 as under : “7. Having considered the rival submissions, I have perused the record of Civil Suit No. 44-B/2003 and also the record of Misc. Judicial Case No. 17/2004, the testimony of the Process Server Kewal Das and the summons of the defendant issued for 15.11.2004 and the report of service by affixture written by Process Server Kewal Das. The report of Process Server on the summons does not give any detail as to the person who identified the house of the defendant and his wife Kuleshwari and also does not reveal the name of the lady who refused service of notice. The report of Process Server also shows that it has been signed by a witness namely Surendra, who was not examined by the plaintiff/respondent. Process Server Kewal Das, in his testimony in paragraph 3, stated that the name of the person who was present at the time of service by affixture was perhaps Deepak Kumar. Page 10 of 14 Paragraph 4 of the testimony of the Process Server also shows that once neighbouring lady had identified the wife of the defendant. However, the name of that lady was not mentioned by the process server in his report as mandated by Order V Rule 18 C.P.C. In paragraph 5, the process server also deposed that he came with the plaintiff-decree-holder to the Court and had snacks with him in the hotel. He also admitted that he did not make any payment for the snacks.” 14. In a decision reported in 1987 MPLJ 746 (Kunja Vs. Lalaram and others) where the summons held to be not duly served and no juridical order was passed, High Court of M.P. following that the Rule 17 or Order 5 of CPC is mandatory, has held in para – 5 as under :- “5. I have no hesitation to take the view that the provisions of Rule 19 aforequoted are mandatory in real sense of the term and that it casts a duty on the Court to make a judicial order while accepting service effected in the manner prescribed under Rule 17 of Order 5, Civil Procedure Code. I say so because the legislature requires the Court that it “shall either declare that the summons has been duly served or order such service as it thinks fit.” Because also, the legislature vests jurisdiction in the Court to examine the serving officer even when his report is supported by an affidavit. That the discretion has been duly and judicially exercised even to refuse to examine the serving officer in such a case must be manifested in the order passed under Rule 19 of Order 5 Civil Procedure Code, accepting service thereunder. Any other view, I have no hesitation to say at once, will cause serious injustice to moneyless and numberless litigants in this poor country where justice has to be purchased at a very high price. I must heed the mandate of Art. 39-A of the Constitution to so declare emphatically in unambiguous terms despite my attention being drawn to a decision of a single Judge in Chandansingh, 1969 MPLJ (Note) 21. With due respect, I humbly beg to differ as the view taken by his Lordship does not accord with the constitutional mandate. I find it difficult to accept the proposition that the report (endorsement or the affidavit) of the process server is sacrosanct. If that had been the position, the legislature would not have invested the Court to exercise discretion in the matter of examining the process server by which a valuable right has been created in the aggrieved person to contest validity of service; because his vital right to be heard in the case could be impaired immeasurably with this object it has made the provision. In any case, his Lordship was not called upon to expound on the ambit and scope of Rule 19, directly in issue in this case, though he spoke of Rule 18. The decision, therefore, is distinguishable on facts.” 15. In a decision reported in 2001 (2) MPLJ 142 ( Baijnath Mishrilal Kachhi Vs. Harishanker s/o Mishrilal and others) High Court of M.P. while dealing with the identical issue held that in the case of refusal of service of summons, when the same has been affixed in presence of witnesses and report has been endorsed, it has also to be reported as to who identified the house of the defendant and the name of the person who identified the name of the defendant has to be mentioned, in para 15 it has held as under :- “15. It is therefore, clear that in case of refusal of service of summons, the same has to be affixed in the presence of the witnesses and a report has to be endorsed by the process server in that regard. It has also to be reported by the process server, as to who identified the house of the defendant and he should also mention the names of persons in whose presence the copy of summons was affixed, on the refusal to receive the summons by the defendant.” 16. Order 5 Rule 19 provides for examination of serving officer, where a summon is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit, and shall either declare that the summons has been duly served or order such service as it thinks fit. 17. From the above stated facts and considering the provisions of Order 5 Rule 19 CPC, it is quite vivid that the trial Court without considering the provisions of law has proceeded ex-parte and thereafter, has dismissed the suit, as such, the ex-parte proceeding initiated against the defendants is illegal and liable to be set aside. Thus, the finding recorded by the learned trial Court that the appellant has chosen not to appear before the trial Court suffers from perversity or illegality. 18. The further submission of the learned counsel for the respondent No.1.1 is that this Court should not fully remand the matter, but the remand can be ordered in terms of Order 41 Rule 25 of the CPC is considered. This submission deserves to be rejected as in the present case entire judgment of the trial Court as well as first appellate Court have been passed without opportunity of appellant, which is against the principle of natural justice and goes to the root cause of the lis between the parties. Even there was no pleading or evidence on behalf of the appellant, as such, there is no circumstances which is available on record for this Court to frame issue and then remand the case as per Order 41 Rule 25 of the CPC. Considering facts of the case and provisions of Order 41 Rule 25 of the CPC, I am of the view that this submission made by the learned counsel for the respondent No. 1.1 deserves to be rejected and accordingly it is rejected. 19. Consequently, the judgment and decree dated 12.10.2012 passed by the learned first appellate Court and judgment and decree dated 30.09.2010 passed by the learned trial Court are set aside and the matter is remitted back to the trial Court for afresh adjudication in accordance with law within an outer limit of 1½ years from the first appearance of the plaintiff and the defendant No.2. The plaintiff is at liberty to amend the pleadings if the exigency so arises and defendants are at liberty to file written statements. All the parties are at liberty to lead evidence, if they are so advised, on their appearance before the trial Court. The plaintiff and defendants are directed to appear before the trial Court on 10th September, 2025. Since all the defendants have not appeared before this Court, therefore, on payment of process fee by the plaintiff, the trial Court will issue summons for seeking presence of remaining defendant before the trial Court. 20. Since, the substantial question of law No. 1 and 2 are dependable upon the final outcome of the decision of the suit, thus this Court has chosen not to adjudicate them and they are left open to be answered, if exigencies so arise. It is made clear that this Court has not touched upon the merits of the case and all the contentions of the parties are left open, that will be considered and decided by the trial Court on the basis of materials and evidence produced before it. Page 14 of 14 21. With the aforesaid observation and direction, the second appeal is allowed in part and the matter is remitted back to the trial Court for fresh adjudication of the case as per the directions given above. 22. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Deshmukh KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.07.23 11:09:43 +0530