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TMI Blog2007 (3) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... er on 2nd June, 2006. The said application was registered as I.A. No. 7184/2006. By the impugned Order this application was dismissed by the learned Single Judge. 5. Learned Single Judge rejected the application of the appellant herein, filed under Order IX, Rule 7 of the Code, inter alia, holding that three attempts were made to serve notice upon the appellant herein by registered post as well as ordinary process but without success. Learned Single Judge relying upon the reports of the process server as well as the postal authorities, came to the conclusion that the appellant herein was avoiding service and accordingly had rightly directed substituted service through publication. 6. We have heard learned Counsel for the parties who have drawn our attention to the reports of the process server and the postal authorities. During the course of hearing, learned senior counsel for the appellant had stated that he is ready and willing to pay costs of ₹ 50,000/- to the respondent in case the Order directing ex-parte proceedings is set aside. 7. It may be relevant to state here that the above-mentioned Suit was filed on 29th March, 2003. Vide Order dated 24th April, 2003 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nu Sharma, i.e. the appellant was not available as she was in U.S.A. However, the report of the process server is not signed by Mr. Chawla but by an employee Mr. Asif. Signatures of Mr. Asif are also available on the process server's reports when he allegedly tried to serve summons on the appellant herein at 9B, Telegraphic Lane, New Delhi on 16th August, 2003 and 20th August, 2003. It is also stated in these reports that Mr.Asif or Mr. Sayed Asif Ali is an employee in the plaintiff company, i.e. the respondent herein. As per another report of the process server, on 16th August, 2003, the guard on duty who refused to give his name informed him that Ms. Renu Sharma had gone out of Delhi. As per the process server's report, on 20th August, 2003, the guard who identified himself as Santosh verbally informed the process server that Ms. Renu Sharma had gone out and he shall enquire from Mr. J.K. Sharma. Mr. Santosh allegedly talked to Mr. J.K. Sharma on telephone and the guard thereafter refused to accept the summon stating, inter alia, that Mr. J.K. Sharma had informed him that Ms. Renu Sharma had gone to USA and he would not accept the summon. It may be relevant to state here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult to believe that the appellant would have engaged a lawyer and would have gone to the office of the learned Counsel for the respondent-company but did not deem it appropriate to appear in the Court. In normal course the appellant would have filed an application for setting aside of the ex-parte Order rather than wait for a further period of two years and then move an application. 14. Provisions of Order V of the Code relates to service of summons. Order V, Rule 12 of the Code enjoins that wherever it is practicable, service should be made on the person concerned unless the person has an agent empowered to accept service. Thus the requirement under law is that attempt should be made to serve notice personally on the party unless there is an agent empowered to accept service. Order V, Rules 13 and 14 of the Code relate to service of summons on an agent in certain circumstances. The said Rules, however, are not applicable to the present case. Order V, Rule 15 of the Code empowers the process server to serve summons on any adult male member of the family, if the party is found to be absent when service of summons is sought to be effected on him at his residence and there is no li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e summon has been duly served. Where a process server has furnished an affidavit, the Court still has power to examine the process server and conduct such enquiry and thereafter decide whether the summon is duly served. Order V, Rule 19A of the Code stands omitted pursuant to Code of Civil Procedure (Amendment) Act, 1999 w.e.f. 1st July, 2002 but the said provision now stand incorporated in Order V, Rule 17 of the Code. 19. We are conscious of the fact that parties do delay service of summons to stall and prolong proceedings. In fact there are circumstances which raise suspicion and indicate that the appellant herein was delaying service of summons. It is admitted by the appellant from her application that the three addresses on which attempts were being made to serve notices are correct. Attempt to serve notices was not made once but on three occasions both by ordinary process as well as by registered A.D. cover. Similarly, on publication, notices were sent by UPC by The Statesman , a third party. There is also compliance of Order XXXIX, Rule 3A of the Code by the respondent. The appellant it is stated is wife of a senior police officer and was deliberately delaying and avoidi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant who have filed affidavit by way of evidence. We also find that after the appellant was proceeded against ex-parte, the respondent had taken a long time to file affidavit by way of evidence of his witnesses. The matter was repeatedly adjourned at the request of the respondent herein. 21. We may, however, deal with the judgments relied upon by the respondent as the Appeal is being allowed subject to payment of costs. In the case of Emess Advertising Service v. The Hindustan Times , the Court was satisfied with the substituted service by way of publication in the newspaper. The Court also noticed that the notice was also sent by UPC by the said newspaper. In the case of Bhushan Tyagi v. Attar Kali the Court referred to the conduct of the defendant therein who had inspected the Court file but did not move any application for setting aside the ex-parte Order. The Court felt that the defendant therein was trying to over-reach the Court. In Rajesh Arora verssus Mukesh Jain and Ors. the Court was dealing with the provisions of Order xxxvII, Rule 3 of the Code and in that context it was held that sterner standards of service as laid down in Order V were not required to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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