CHAUHAN, J. - (1.) THE hyper-technical and the hyper- insensitive approach of the trial Court while dealing with an application under Order 9, Rule 13 of the Code of Civil Procedure (henceforth to be referred to as `the Code', for short) is forcing a defence to run from pillar to post. What could be easily tackied at the level of the trial Court is being transported to this court. Needlessly, this Court is being flooded day in day out with appeals against the rejection of application under Order 9, Rule 13 of the Code. This tide needs to be reserved, if this court is not to be overwhelmed by the rising dockets.
(2.) THE appellant has challenged the order dated 15. 7. 2006 passed by the Additional District Judge, Shahpura, District Jaipur whereby the learned Judge has rejected the application under Order 9 Rule 13 read with Section 151 of the Code. The brief facts of the case are that the plaintiff- respondent had filed a suit for recovery of Rs. 1,20,000/- against the appellant. Vide order dated 13. 4. 2005, the summons were issued. Vide order dated 25. 5. 2005, the notices were sent through Registered A. D. According to the order-sheet dated 18. 7. 2005, the Registered A. D. was returned with a note indicating that the appellant had refused to accept the said notice. Thus, the service was deemed to be complete and ex-parte proceedings were commenced against the appellant. Eventually, an ex-parte judgment and decree was passed on 20. 1. 2006. Since the appellant came to know about the ex-parte judgment on 30. 5. 2006, on 21. 6. 2006 he immediately moved an application for getting the certified copy of the ex-parte judgment. He filed an application under Order 9 Rule 13 of the Code on 24. 6. 2006. Since there was a delay in filing of the application under Order 9 Rule 13 of the Code, he also filed an application under Section 5 of the Limitation Act. However, vide order dated 15. 7. 2006, the said application has been dismissed by the learned Judge. Hence, this appeal before this Court. Mr. Pradeep Kalwania, the learned counsel for the appellant, has contended that according to the report of the process server, no one was found at the address. Therefore, the notices were returned to the trial Court. According to the envelope of the Registered A. D. , there is only a single note on the said envelope as "n. F. ", which stands for the words "not Found". According to the learned counsel, there is no indication that someone has refused to take the notice on behalf of the appellant. Thus, notice was never served upon the appellant. Hence, he was ignorant of the fact that a proceeding was pending against him in the Court. Moreover, the observations made in the order-sheet dated 18. 7. 2005 that the notice was refused, such an observation is belled by the notation on the envelope of the Registered A. D. , which reads "not found" Furthermore, the notice was not pasted at the conspicuous place of the resident of the appellant in the presence of two independent witnesses. Lastly, the process server was not even examined by the Court to consider the fact whether the Registered A. D. was refused and if so by whom. The learned trial Court has ample power to impose a cost on the appellant and set aside the ex-parte judgment and decree, but the learned Judge has refused to exercise the said power. On the other hand, Mr. Gaurav Gupta, the learned counsel for the respondent, has argued that the envelope of the Registered A. D. has been washed out. Therefore, notation on it is not very clear. But, there is an observation in the order-sheet dated 18. 7. 2005 clearly stating that the appellant had refused to accept the notice. This fact has been reflected in the order- sheet dated 18. 7. 2005. Thus, the service is deemed to be complete. Hence, he has supported the impugned judgment. We have heard both the learned counsels for the parties and have perused the record as well as the impugned judgment.
(3.) THE function of the courts and reason for creation of the Judicial system is to do justice to the parties. Thus, by the very raison d'etre, the courts are expected to be liberal in spirit and not pedantic in their approach. Although, Order 9 of the Code bestows sufficient power to deny the defendant an opportunity of hearing, but such a power should not be used mechanically or at the drop of the head. Since exercise of such a power infringes on the constitutional right of being heard, since it also infringes on the principles of natural justice, such a power should be exercised in the rarest of the rare case. Repeatedly, it has come to the notice of this Court that the door is being shut on the defendant on the ground that the defendant has approached the Court beyond the period of limitation or ostensibly on the ground that the summons were served. While judging the sufficiency of the reasons for the non-appearance of the defendant, the court should be sensitive to the harsh reality of this country. THE illiterate and the poor litigant approaches the court for justice. THE defendant approaches the court with the hope that the will be given ample opportunity to defend his case. At times, the defendant is assured by the counsel that he will be informed about the progress of the court. But, the counsel falls to adhere to his promise. At times, the counsel pleads "no instructions", but the defendant has no knowledge of the counsel's pleading "no instructions" before the court. At times, summons are said to be served upon the defendant, but no cogent evidence is produced to buttress such a claim. At times, the service of summons is presumed on weak evidence. At times, cases are transferred from one court to another without any information to the litigant, who may be residing miles away from the court. In such circumstances, the court should be circumspect in dismissing the application under Order 9 Rule 13 of the Code. For, defendant is being ousted from the court for no fault on his own. THE illiterate litigant is hardly aware of the intricacies of the legal procedure. THE illiterate litigant instinctively and in good faith relies on the assurance of the counsel and hopes that the court will be vigilant about his interests. THErefore, while dealing with an application under Order 9 Rule 13 of the Code, the court should not only be liberal in its spirit but should also be sensitive to the reality in which the litigant is trying to survive in the system. A mechanical, a pedantic, a myopic attitude of the court tends to thrown the litigation out of the Court and tends to shut the doors of the court upon him. Such an procedure compels the defendant to rush to this Court and this Court is unnecessarily being flooded by such litigation. In case the trial Courts were to be more sensitive to invoke its power under Order 9 Rule 13 of the Code, such needless litigation coming to this Court can be stopped. A bare perusal of the Order 9 of the Code clearly reveals that the trial Court has ample power for setting aside the ex- parte proceeding as well as for setting aside the ex-parte judgment and decree by imposing a cost upon the defendant. Instead of exercising this power, the trial Court are mechanically dismissing the application under Order 9 Rule 13 of the Code. This is cause for concerned. In cases where the service of summons is doubtful, the trial Court is duty bound to take evidence on the point whether the summons were duly served upon the defendant or not. The process server should be examined for the said purpose. In case the notice has been pasted at a conspicuous place of defendant's residence, then the two independent witnesses should also be examined by the court. It is only after examining the relevant persons that an application under Order 9 Rule 13 of the Code should be decided. ;