Nirmal Kanta Verma v. Rajiv Abrol

ORDER

¶01Upon institution of a civil suit by the petitioner against the respondent, the summons issued for service of the respondent was not served on account of the fact that the respondent at the time of visit of the Process Server was not at home and by purported reference of refusal by his son to accept the summons, the Process Server returned the process attributing the fact that the son of the respondent has refused to take the summons. Serial No. 03 Regular List

¶02The Process Server did not carry forward the responsibility of pasting the copy of summons on the conspicuous part of the house of the respondent in the face of purported refusal of son of the respondent to acknowledge the service of summons.

¶03Be that as it may, the court of learned Sub-Registrar (Munsiff), Jammu, which then was seized of the lis, directed issuance of fresh summons for appearance on

20.10.2023 on which date the defendant came to cause appearance through an Advocate with the submission that copy of the plaint be delivered to him.

¶04Accordingly, the court of learned Sub-Registrar (Munsiff), Jammu passed a direction to the said effect unto the plaintiff i.e., the petitioner herein to provide copy of the plaint to the defendant for enabling to file the written statement.

¶05This very direction unto the plaintiff for supplying copy of the plaint to the defendant and/or his counsel is an acknowledgement of fact on the part of the plaintiff and/or his counsel that the copy of the plaint and documents had not accompanied the summons which purportedly came to be refused from being taken by the son of the respondent.

¶06The requisite copy of plaint is said to have been furnished to the counsel for the defendant on 26.12.2023 whereafter within prescribed period of limitation, the respondent came to file written statement on 09.02.2024 by acting on side of abandoned caution by submitting an application for condonation of delay explaining the time consumption in submitting the written statement on

09.02.2024.

¶07The court of learned Sub-Registrar (Munsiff), Jammu, by virtue of an order dated 23.01.2025, accepted the plea of the defendant/respondent herein and entertained the written statement on record.

¶08Before this Court proceeds further, this Court needs to make an observation here about the casualness on the part of the then Sub-Registrar (Munsiff), Jammu in signing the order impugned which bears two references as to the date of its passing. Head Note date is 23.01.2025, whereas the bottom level date is 23.01.2024.

¶09The correct date is 23.01.2025 because the written statement was filed on 09.02.2024 meaning thereby it took almost more than one year for the then Presiding Officer of the court of Sub-Registrar (Munsiff), Jammu to dispose of an application for condonation of delay and the

petitioner, as a plaintiff, felt no botheration that his suit was suffering delay in terms of adjudication and kept on putting up for proceedings relatable to the condonation of delay plea of the respondent.

¶10Be that as it may, this Court is of the view that once having accepted a situation upon himself that copy of the plaint was not provided to the defendant and/or his counsel, the plaintiff and/or his counsel accepted late start of time against the defendant in the matter of filing the written statement which started running only w.e.f.

26.12.2023 when copy of the plaint along with the documents came to be supplied to the defendant and/or his counsel, as such, this Court finds no illegally in the impugned order to warrant any further wastage of time of this Court also with regard to the present petition.

¶11Mr. Manik Dutt, learned counsel for the petitioner's emphasis on S.O. 1123 (E) of 2020 dated

18.03.2020 passed in exercise of power under section 96 of the J&K Reorganization Act, 2019 is misplaced in view of the fact that there is a failure on the part of the civil court seized of the suit to carry out due compliance of Order V of the Code of Civil Procedure, 1908.

¶12The learned counsel for the petitioner when queried by this Court as to from which date onwards he is meaning to count the running of the time against the defendant in filing of the written statement, the learned counsel submits that on 02.09.2023 when the purported refusal came to be reported back by the Process Server.

¶13Even if said plea of Mr. Manik Dutt, learned counsel for the petitioner is to be accepted for the sake of arguments, though there is no factual basis for assuming so, but for said plea to receive an acceptance from this Court, the Process Server in his process serving report ought to have then made a reflection of the fact that as to whether the purported service of summons was accompanied by copy of the plaint.

¶14The report further does not mention as to whether he read over the entire summons to the son of the defendant and also apprised him that the summons is being accompanied by a copy of the plaint even if the refusal from the son came to take place with respect to service of summons meant for the respondent.

¶15The mandate of Order V rule 17 of the Code of Civil Procedure, 1908 which required the Process Server to then affix a copy of the summons on the outer door or some

other conspicuous part of the house of the defendant/respondent herein surely did not take place which otherwise would have found a mention in the return report of the Process Server.

¶16In fact, mandate of Order V rule 17 of the Code of Civil Procedure, 1908 is exactly this that Process Server is to spell out in his return report that upon refusal to acknowledge service of the summons, the Process Server carried out affixation of the copy of the summons on the outer door or the other conspicuous part of the house of the defendant refusing service of the summons.

¶17So much so, in the Process Server's report in the present case there is no endorsement in the manner as envisaged by rule 18 of Order V of the Code of Civil Procedure, 1908 as to who is the witness identifying the exercise being carried out by the Process Server in the matter of house identification of the respondent/defendant, identification of the son of the respondent/defendant, identifying the refusal on the part of the son of the respondent/defendant and lastly being a witness to the affixation of the copy of the summons on the outer door of conspicuous part of the house of the respondent/defendant which surely did not take place in the present case. The

Process Server was supposed to then return this process along with his affidavit which in the present case has not taken place.

¶18When this Court is exposed to this much number of omissions in the matter of carrying out due service of the respondent, then Mr. Manik Dutt, learned counsel for the petitioner's emphasis on S.O. 1123 (E) of 2020 dated

18.03.2020 is nothing but a seriously misplaced plea.

¶19This Court is at loss to figure out as to why the petitioner as a plaintiff is more bent upon to get a decree by default by upstaging the written statement of the respondent/defendant on the count of its non-filing within the prescribed period of limitation as being read by the counsel for the petitioner/plaintiff.

¶20In the light of the aforesaid, this petition is said to be misconceived and hence dismissed along with connected application.

(RAHUL BHARTI) JUDGE JAMMU

06.06.2026

Bunty

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CM No. 2276/2025 Date of pronouncement : 06.06.2026 Uploaded on : 08.06.2026 Nirmal Kanta Verma …..Petitioner Through:- Mr. Manik Dutt, Advocate. V/s Rajiv Abrol …..Respondent Through:- Mr. Ajay Abrol, Advocate. \ CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE