Chattisgarh High Court
Smt. Poonam Dwivedi vs Brijmohan (Died) Through Lrs on 17 July, 2025
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 14
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
Page 2 of 14
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
Page 3 of 14documents 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
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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
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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
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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.
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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
Page 8 of 14
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
Page 9 of 14declare 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
Page 11 of 14
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
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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
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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.
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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/-
Digitally
signed by
KISHORE
(Narendra Kumar Vyas)
KISHORE KUMAR
Judge
KUMAR DESHMUKH
DESHMUKH Date:
2025.07.23
11:09:43
+0530Deshmukh
