In a significant development, the Punjab and Haryana High Court in a learned, laudable, landmark and latest judgment titled M/s Paras Ram Milkhi Ram vs Sudarshan Tea Pvt Ltd and Another in CR-2188-2015 (O&M) delivered as recently as on March 23, 2022 has made it quite clear that summons by registered post/acknowledgement due cannot directly be sent by the Court where the suit is instituted to a defendant residing outside it’s jurisdiction. The single Judge Bench of Justice Alka Sarin held that, “where the defendant resides outside the jurisdiction of the Court in which the suit is instituted and the Court directs that summons on such a defendant be served by registered post acknowledgement due, such summons have to be first sent to the Court having jurisdiction where the defendant resides and that Court would thereupon proceed to serve the defendant as if the summons were issued by that Court.” Very rightly so.
To start with, the single Judge Bench comprising of Justice Alka Sarin of Punjab and Haryana High Court first and foremost puts forth in this learned judgment that, “Heard through video conferencing. The present petition has been filed under Article 227 of the Constitution of India challenging order dated 08.01.2015 passed by the Additional District Judge, Sangrur and 27.04.2011 passed by the Additional Civil Judge (Sr. Division), Moonak as well as the ex-parte judgment and decree dated 11.06.2015 passed by the Additional Civil Judge (Sr. Division), Sunam.”
To put things in perspective, the Bench then envisages in next para that, “Brief facts relevant to the present lis are that on 04.02.2004 the plaintiff-respondents herein filed a suit for recovery Rs.1,32,513/- against the defendant-petitioners. Vide order dated 05.02.2004, the Trial Court issued notice to the defendants-petitioners for 04.03.2004 on filing of registered cover. Summons were issued through registered post on 06.02.2004 for 04.03.2004. On 04.03.2004 the registered cover sent to the defendant-petitioners No.2 to 5 were received back with the report of refusal and hence they were proceeded against ex-parte. Since acknowledgment due qua defendant-petitioner No.1, namely, Satpal Mittal was not received, hence fresh notice was directed for 17.04.2004. On 17.04.2004 the acknowledgment due was received back with a report of refusal and in such circumstances the Court, having been satisfied that the defendant-petitioner No.1 could not be served through ordinary process, directed publication in the daily Chardikalan for 15.05.2004. On 15.05.2004 the case was adjourned to 18.05.2004 and on 18.05.2004 the case was adjourned to 24.07.2004 as publication had not been received back. Order dated 24.07.2004 records that the publication had duly been published in the Daily Chardikalan in its Edition dated 13.06.2004 and despite the matter being called several times none had appearance on behalf of defendant No.1. As such defendant No.1 was proceeded against ex-parte. On 11.06.2005 the suit was decreed ex-parte.”
As it turned out, the Bench then enunciates in the next para that, “Thereafter, an execution was filed at Moonak/Sunam, District Sangrur on 30.07.2005 which was transferred to District Patiala as the defendant-petitioners were residents of Patiala. It is the case set up that the Bailiff of the Court of Patiala came for attachment of the residential house of Milkhi Ram on 04.12.2007 and that is when the defendant-petitioners came to know of the decree passed by the Court at Moonak. On 02.01.2008 the defendant-petitioners filed an application for setting aside the ex-parte judgment and decree before the Trial Court at Moonak by pleading that they had not received the summons from the Court at Moonak and that the defendant-petitioners have never been served in the suit as also taking the defence that the amount had been received against receipt by Vinod Kumar Jain, Director of the plaintiff-respondent. However, the receipt had been misplaced. On 27.04.2011 the Trial Court dismissed the application for setting aside the ex-parte judgment and decree. Against the said order an appeal was preferred which also came to be dismissed on 08.01.2005. Aggrieved by the said two orders the present revision petition has been filed.”
As we see, after hearing both the sides, the Bench then observes that, “In the present case, the suit was filed at Sunam, District Sangrur and all the defendants were residing at Patiala as per the addresses mentioned in the plaint. The defendant-petitioners were, thus, residing outside the jurisdiction of the Court where the suit was instituted. The summons to the defendant-petitioners were sent to Patiala, District Patiala by registered post acknowledgement due by the Trial Court at Sunam, District Sangrur where the suit was instituted and were received back with reports of refusal. In the present case this Court has to examine if there was proper service upon the defendant-petitioners.”
Needless to say, the Bench then states that, “Under Order 5 Rule 9-A CPC, the Court may, in addition to the service of summons under Rule 9, on an application by the plaintiff, deliver summons to the plaintiff for serving on the defendant. Such summons have to be served personally upon the defendant by the plaintiff or on his behalf. The Rule makes no distinction between a defendant within or without the jurisdiction of the Court which issues the summons.”
Be it noted, the Bench then mentions in the next para that, “Order 5 Rule 21 CPC (as amended by Act No.46 of 1999) pertains to service of summons where the defendant resides within the jurisdiction of another Court and reads as under:
“21. Service of summons where defendant resides within jurisdiction of another Court – A summons may be sent by the Court by which it is issued, whether within or without the State, either by one of its officers or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court to any Court (not being the High Court) having jurisdiction in the place where the defendant resides.”
It may be mentioned here that for the States of Punjab, Haryana and UT Chandigarh Order 5 Rule 21 CPC, as existing prior to the amended Rule 21 reproduced above, was substituted by the following Rule 21 :
“A summons may be sent by the Court by which it is issued, whether within or without the State, either by one of its officers or by post to any Court (not being the High Court) having jurisdiction in the place where the defendant resides. Provided that where the defendant resides within the State at a place not exceeding sixteen kilometers from the place where the Court is situate, a summons may be delivered or sent by the Court to one of its officers to be served by him or one of his subordinates.”
Further, the Bench then holds in the next para that, “Thus, where a defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons have to be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court. Further, the summons can be sent by registered post acknowledgment due or by speed post or by an approved courier service or by any other means of transmission of documents including fax, electronic mail service as provided by the rules made by the High Court.”
In addition, the Bench then also pointed out that, “However, where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, the summons to such a defendant can be sent directly by the Court, where the suit is instituted, by speed post, approved courier service or by any other means of transmission of documents including fax, electronic mail service as provided by the rules made by the High Court. For service by such means on a defendant residing outside the jurisdiction of the Court, the provisions of Order 5 Rule 21 shall not apply. Registered post acknowledgement due is specifically excluded in Order 5 Rule 9(4) CPC and, therefore, for service by registered post acknowledgement due on a defendant residing outside the jurisdiction of the Court, the provisions of Order 5 Rule 21 shall apply.”
Notably, the Bench then observes that, “Order 5 Rule 21 CPC makes it clear such that summons ordered to be served by registered post acknowledgement due on a defendant residing outside the jurisdiction of the Court would have to be sent to the Court having jurisdiction where the defendant resides. Under Order 5 Rule 23 CPC, the Court to which the summons are sent under Rule 21 shall proceed as if it had been issued by such Court. Order 5 Rule 23 CPC reads as under :
“Duty of Court to which summons is sent – The Court to which a summons is sent under Rule 21 or Rule 22 shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue, together with the record (if any) of its proceedings with regard thereto.”
Most significantly, the Bench then minces no words to hold unequivocally that, “These provisions make it clear that where the defendant resides outside the jurisdiction of the Court in which the suit is instituted and the Court directs that summons on such a defendant be served by registered post acknowledgement due, such summons have to be first sent to the Court having jurisdiction where the defendant resides and that Court would thereupon proceed to serve the defendant as if the summons were issued by that Court. Summons by registered post acknowledgement due cannot directly be sent by the Court where the suit is instituted to a defendant residing outside it’s jurisdiction. The decision by the Himachal Pradesh High Court in Aar Kay Traders case (supra) is to the same effect.”
It is a no-brainer that the Bench then very rightly maintains that, “In the present case, admittedly, the defendant-petitioners were residing outside the territorial jurisdiction of the Court where the suit was instituted. That being so, service sought to be effected upon them by way of registered post acknowledgement due directly by the Court where the suit was instituted cannot be deemed to be proper service and the procedure adopted by the Trial Court was contrary to that laid down in Order 5 Rules 9 and 21 CPC.”
As a corollary, the Bench then holds in the next para that, “In view of the discussion above, the present petition deserves to succeed and is consequently allowed. The impugned order dated 08.01.2015 (Annexure P-6) passed by the Additional District Judge, Sangrur and the impugned order dated 27.04.2011 (Annexure P-5) passed by the Additional Civil Judge (Sr. Division), Moonak as well as the impugned ex-parte judgment and decree dated 11.06.2015 (Annexure P-2) passed by the Additional Civil Judge (Sr. Division), Sunam are set aside. Pending applications, if any, also stand disposed off.”
Finally, the Bench then concludes by holding in the final para that, “Parties through their counsel to appear before the Trial Court in Sunam on 04.04.2022 for further proceedings in the suit. Records summoned vide order dated 10.11.2017 be sent back to the Courts concerned.”
In a nutshell, the Punjab and Haryana High Court has made it indubitably clear in this extremely commendable judgment that, “Summons by registered post acknowledgement due cannot directly be sent by the Court where the suit is instituted to a defendant residing outside it’s jurisdiction.” Of course, all the courts must always in similar such cases adhere to what has been laid down by the Punjab and Haryana High Court so explicitly, elegantly, eloquently and effectively! There can certainly be just no denying or disputing it!
Sanjeev Sirohi, Advocate
A summons may be sent by the Court by which it is issued, whether within or without the State, either by one of its officers or by post to any Court (not being the High Court) having jurisdiction in the place where the defendant resides. Provided that where the defendant resides within the State at a place not exceeding sixteen kilometers from the place where the Court is situated, a summons may be delivered or sent by the Court to one of its officers to be served by him or one of his subordinates.
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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren
On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.
The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.
In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.
While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.
The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.
Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.
The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.
Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.
In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.
It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.
Accordingly, the court will now hear the matter on 14 December.
DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT
The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.
The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.
On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.
In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.
In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.
The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.
Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.
The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.
SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT
The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.
The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.
The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.
It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”
The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.
In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.
However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.
Mr. Arvind Gupta, Advocate on Record has filled the present petition.
Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court
The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.
The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.
Also, the court imposed a cost of Rupees one lakh on Singh.
In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.
While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.
The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.
However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.
It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.
Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.
The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.
Post-conviction compounding of offences is permissible: Himachal Pradesh High Court
The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.
The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.
Thus, the petitioner had sought compounding of offences.
In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.
However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.
The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.
‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’
The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.
The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.
In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.
However, the court disallowed the claims on two grounds:
Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.
In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.
Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.
The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.
The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.
Accordingly, the court dismissed the petition.
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