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M/S Arora Chemical Industries v. M/S Kapoor Polymers & Another - FIRST APPEAL No. 1256 of 2004  RD-AH 263 (27 January 2005)
Court No. 24
First Appeal No. 1256 of 2004
M/s Arora Chemical Industries
M/s Kapoor Polymers & others
Hon. Sanjay Misra.J.
This is a first appeal under section 96 CPC at the instant of the defendant challenging the ex-parte judgment and decree dated 5.11.2004 passed in Original Suit No. 4 of 2004 by the District Judge Kanpur Nagar decreeing the suit in the following terms :-
"The suit is decreed ex-parte with ex-parte costs. The defendant no.1 and 2 , their partners , proprietors, heirs , representatives, employees, servants, dealers, sub-dealers, stockists and other persons on their behalf are restrained from infringing the registered trade mark of the plaintiff as has been given in Annexure-A of the plaint ; they are also restrained from selling, manufacturing, trading etc. of the deceptively identical trade mark container as has been given in Annexure-1
The defendants are directed to render free and correct account of the business rendered in the impugned trade mark J.K.Bond from the date of commencement of their business . They are further directed to deliver to the plaintiff for constructing and/or obliteration all seals/dies/blocks/ stationary and other materials bearing impugned trade mark J.K.Brand as Annexure-X under control or possession of the defendant".
The reasons stated by the trial court for decreeing the suit are as under :-
"Defendants did not file any written statement by the date fixed. The suit was heard ex-parte.
Plaintiff by way of evidence has filed affidavit of Sri Narendra Kpoor and assertions made in the affidavit are supported by annexures which have been filed alongwith the affidavit.
I have heard the learned counsel for the plaintiff and have perused the evidence which has been filed in support of the plaint case; the affidavit and the annexures prove the case of the plaintiff.
The suit deserves to be decreed.'
Sri Hari Bans singh has filed vakcalatnama on behalf of the defendant respondent no.2. Sri Saurabh Srivastava has filed Vakalatnama on behalf of plaintiff-respondent no.1. Learned counsel for the plaintiff-respondent no. 1 submits that in view of the averments made in para 4 of the supplementary affidavit , impugned ex/parte judgment and order dated 5.11.2004 passed by the District Judge Kanpur Nagar in Original Suit No. 4 of 2004 may be set aside and the matter may beremanded back to the court below to decide the same afresh within the time granted by this Court. Learned counsel for the appellant has filed a counter to supplementary affidavit alongwith application mp/ 234598 of 2004 making similar averment in para no.3. Learned counsel for the parties proposed that this First Appeal be decided at this stage itself on the material on record.
Affidavits have been exchanged by the parties in this appeal. The defendant appellant has stated in para 7,8,9 and 10 of his affidavit supporting the stay application that the plaintiff respondent no.1 made a publication in News Paper on 5.5.2004 regarding grant of ex-parte injunction which was brought to the notice of the defendant in June 2004 and he filed his objection against application for grant of injunction on 1.7.2004 ; after 1.7.2004 no date was fixed for service of summons and the court fixed 10.7.2004 for framining of issues . Paragraph nos. 7,8 and 10 of the affidavit are quoted here under :-
7. That the respondent no.1 has made a publication in Dainik Jagran dated 5th May 2004 alleging that interim injunction order has been passed by the court. The said publication was brought to the notice of the deponent in June 2004, and therefore, the deponent filed objections against the application for granting temporary injunction on 1st July 2004.
8. 8."That after 1.7.2004 no date for service of summons was fixed by the court, as required by Order VIII Rule 1 CPC. The court only passed an order that on 10.7.2004 issues will be framed. The date of written statement was deleted. The case was not taken up on 10.7.2004 and was taken up on 12.7.2004 without fixing a prior date. No date for written statement was fixed and 23.8.2004 was fixed for hearing of the application for interim injunction as well as for issues. On the application of the respondent no.2 for filing written statement objections were invited. On 23.8.2004 the court was on leave and 14.10.2004 was fixed. On 14.10.2004 the learned court below held that the suit was filed on 29.4.2004, the date of written statement was fixed on 1.7.2004 and since the written statement was not filed on 1.7.2004 and 90 days time has expired, therefore, the right to defence was lost and the respondent no.1 was directed to file an ex-parte evidence by way of affidavit dated 29.10.2004 fixing 5.11.2004 for hearing and judgment. On 29.10.2004 no evidence was filedl by respondent no.1 On 3.11.2004 the deponent filed his written statement and counter claim but that was not considered on 5.11.2004, the court below accepted the ex-parte affidavit without any applicatin for condonation and delivered the judgment within 10 minutes. Copy of the order sheet is being filed as Annexure-3 to this affidavit.
10. That it is submitted that a perusal of the file reveals that the service of the summons was not effected upon the deponent. The summons were sought to be served through the process server but the process server failed to serve the same. Thereafter no orders were passed for effecting service of the summons for written statement and issues.'
A perusal of the order sheet (Annexure-3) dated 29.4.2004 reveals that the suit was registered, notices were issued fixing 1.7.2004 for written statement and 10.7.2004 for issues. Ex-parte injunction was granted and 10.7.2004 was fixed for disposal of injunction application and for framing issues. On 14.10.2004 the court rejected the application of defendant for time to file written statement. In the counter affidavit filedl by the plaintiff respondent it has been stated that notices were issued vide order dated 29.4.2004 and on 7 .5.2004 they were sent by process server but were returned back on 11.5.2004 . Notices were also sent by registered post on 1.5.2004 but the registered envelops came back on 8.5.2004 with the endorsement 'Not claimed' Paragraph 14 of the counter affidavit is quoted here under :-
"That the contents of paragraph no.10 of the affidavit are wrong and vehemently denied. As stated in the preceding paragraphs, it is therefore, most respectfully submitted that after the grant of interim injunction vide order dated 29.4.2004, passed by learned District Judge Kanpur Nagar, the summons were received by the office of Nazarat in the judiciary of Kanpur Nagar on 7.5.2004 and on the same day they weresent by the process server and they were returned back on 11.5.2004 . Besides this normal mode of service steps were taken under Order 39 Rule 3 on 1st May 2004 and on the same day the postal receipts were filed. The registered envelop bearing the endorsement not claimed back on 8.5.2004 ,therefore, it is wrong to allege that no order was passed for effective services on the appellant , on the contrary appellant for one pretext or another tried to linger on the matter instead of filing the written statement and contesting the suit on merits.'
In reply the defendant appellant has denied service of summons and has stated that issuance of notice under Order 39 Rule 3 CPC is not a substitute for service of summons.
From the aforesaid averments made by the parties in their respective affidavits and also from a perusal of the order sheet it transpires that the summons fixing date for filing of written statement were not served on the defendants either by the process server or by the registered post. Notice of the passing of the order granting ex-parte injunction under Order 39 Rule 1 CPC on the date of institution of the suit was given by publication in the News paper dated 5.5.2004. This publication was not made on any order of the Court. No such order exists on record.
Order V CPC provides for issue and service of summons. Rule 2 provides that every summons shall be accompanied by a copy of the plaint. Rule 9 (5) contemplates service on refusal of the defendant to take or accept the summons and deemed service. Rule 9A lays down procedure for dasti service of summon . Rule 17 prescribes service by affixation. Rule 18 relates to Endorsement of time and manner of service. Rule 20 prescribes mode of substituted service by affixation and publication in News paper.
Order 5 Rule 20 provides for substituted service, i.e. by publication in local newspaper but it cannot be made in a routine manner.
The substituted service is not permissible unless the Court records the reasons reaching the conclusion that it is not possible to serve the defendant/respondent in an ordinary manner.
A.Division Bench of the Calcutta High Court in Teharoonchand Vs. M/s Surajmall Nagarmull, AIR 1984 Cal.82 considered the issue and held as under :
"Before issuing summons under Order 5 Rule 20 of the Code, the Court is to be satisfied that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason summons cannot be served in the ordinary way. Before such satisfaction, the Court has to consider the case carefuly having regard to the nature of the earlier attemtps made for the service of sumons. Mere assertion of the plaintiff in this respect to attract the provisions of Order 5 Rule 20 of the Code will not be enough. Only when the court is satisfied from the materials on record that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason summons cannot be served in the ordinary way, the Court will be entitled to order service of summons under Order 5 Rule 20 of the Code."
Similar view has been re-iterated in Ram August Tewari and others Vs. bindeshwari Tewari & others AIR 1972 Pat. 142.
In Ambika Prasad Vs. Kodai Upadhya, AIR 1954, All.45, this Court considered a case where the defendant could not be served being detained in jail and it was held there that in such a situaiton as the defendant could not be served, the proper procedure under Order 5 Rule 20 CPC and then to proceed with the trial of the suit.
In Smt. M.L.Nagarathnamma Vs. S.R.Suryanarayan Rao, 1985, NOC 214 (Kant) the Division Bench examined a case where summons could not be served in a suit on the defendant teacher on account of her transfer and request was made to serve her by substituted service. The Division Bench of the Karnataka High Court held that unless the enquiry is held and Court comes to the conclusion that she was evading the service, the question of serving her by substituted service did not arise.
The court registered the suit and directed issue of notices on 29.4.2004. Order sheet dated 1.5.2004 shows that the plaintiff filed application and affidavit under Order 39 Rule 3 which was ordered to be kept on record. Summons issued through process server were returned unserved on 11.5.2004 . Those issued by registered post AD were returned on 8.5.2004 with the endorsement ' not claimed' There was no endorsement as required under Rule 18 nor there was any endorsement as required by Rule 9 (3) . Affixation under Rule 17 was not done. The provision of Rule 20 were not initiated with respect to service of summons as required by rule 2. Fresh sumons were not issued after the first summons returned unserved on 8.5.2004 and 11.5.2004. No effort was made to serve the summons thereafter. No order was passed with respect to deemed service.
The endorsement ' not claimed' made on the registered envelop could in no sense be understood to mean refusal. The word ' not' is used to form or express a negative. The word ' claim' in the present context would mean ' a demand for something considered one's due; As a verb its synonyms would be 'demand'; ' exact'; ' insist on' ; 'lay claim to'; Therefore, when the summons were returned unserved, fresh summons or anyother mode of service as pres+cribed ought to have been taken. Before proceeding with the suit, the court was required to ensure service of summons on the defendant. Section 27CPC reads as under :
"Summons to defendants :- where a suit has been duly instituted , a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed ( on such day noit beyond thirty days from the date of the institution of the suit).
The words ' on such day not beyond thirty days from date of the institution of the suit' have been inserted by Amending Act No. 46 of 1999 . Rule 1 of Order V as substituted by Act 46 of 199 reads as under :
' Sumons (1) When a suit has been duly instituted , a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence , if any, within thirty days from the date of service of summons on that defendant:
Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff's claim:
Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.
A reading of the above provisions of section 27 indicates that the defendant is expected to appear and answer the claim not beyond 30 days from the date of institution of suit. Rule 1 of Order V CPC requires summons to be issued to the defendant to answer the claim and to file written statement of his defence within thirty days from the date of institution of the suit; the second proviso provides that where the defendant fail to file written statement on the said, he shall be allowed to file the same on such other day which shall not be beyond 30 days from the date of service of summons on defendant as the court may think fit. The aforementioned provisions relate to issue and service of summons on a duly instituted suit.
` The provisions oif order VIII Rule 1 CPC as amended in 1999 reads as under :-
"1. Written statement :- The defendant shall within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.'
Learned counsel for the plaintiff respondent has placed reliance in the case rendered by this Court in the matter of Nanda Agrawal Versus Mantri Mandir Varanasi and another ARC 2004 (2) 59 8. He submitted that failure to file written statement as contemplated under Order VIII Rule 1 CPC entails the penalty on the defendant and the suit has to be decided even in the absence of written statement. In the case of Nanda Agarwal, the defendant's application for extension of time for filing written statement was rejected in view of the amended provision of order VIII Rule 1 CPC. The order was challenged under Section 115 CPC. This Courthas held that a failure to file written statement as contemplated under Order VIII Rule 1 CPC entails the penalty on the defendant that he cannt file a written statement and the suit has to be decided even in the absence of written statement.
The applicability of the aforementioned provision is from the date of service of summons on the defendant. Once the defenant is served with the summons issued under Order V CPC, then on his failure to file written statement as contemplated under Order VIII Rule 1 CPC he can not file written statement and the courts trying the civil suit does not have any power to extend the time for filing written statement beyond what is stipulated in Order VIII Rule 1.
Order sheet dated 12.7. 2004 indicates that the court ordered written statement to be filedl by the date fixed. The date for filing written statement as fixed by the order dated 29.4.2004 (when suit was registered) was 1.7.2004. Obviously when the court directed written statement to be filed by the date fixed vide its order dated 12.7.2004 it did not refer to the date 1.7.2004, because it had since expired. It referred to the date fixed by the court in its order dated 12.7.2004 i.e. 23.8.2004 . Although summons were not served on the defendants but since the order dated 12.7.2004 was passed in their presence hence 23.8.2004 can be deemed to be the first date fixed for filing of written statement.
The record indicates that the first date for filing written statement after the defendants came to know of passing of ex-parte injunction by publication was 23.8.2004. It can therefore, be inferred that defendant obtained a copy of the plaint etc. from the court because they filed their written statement on 3.11.2004 . Under the proviso to Order VIII Rule 1 CPC a further time of sixty days can be allowed by the Court. In the present case even before expiry of the said 60 days the court passed the order dated 14.10.2004 rejecting the application for extension of time for filing written statement on the sole ground that three months had expired from the earlier date i.e. 1.7.2004 fixed for filing written statement. Since 23.8.2004 was the first date fixed for filing written statement, they could be allowed a further period of 60 days particularly when summons were not served upon the defendants. There is no evidence with regard to service of summons on the defendant appellant as required under Order V C.P.C. On these facts the trial court virtually debarred the defendants from the benefit of the proviso to Rule 1 of Order VIII C.P.C. and proceeded with the suit ex-parte in an illegal manner resulting in the passing of the impugned ex-parte judgment and decree dated 5.11.2004 . For the aforesaid reasons the same is liable to be set aside.
Learned counsel for the defendant-appellant has placed reliance on the decision of Hon'ble Supreme Court in the matter of Balraj Taneja Vs. Sunl Madan AIR 1999 ,SC 3381 wherein it has been held as follows :
"in a case, specially where a written statement has not been filed by the defendant , the Court should be alittle cautious in proceeding under Order VIII Rule 10 CPC, Before passing the judgment against the defendant, it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibily be passed in favour of the plaintiff without requiring him to prove any fact mentined in the plant. It is a matter of the Court's satisfaction and therefore, only on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different version are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the fact so as to settle the factual controversy . Such a case would be covered by the expression "the Court may in its discretion require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order VIII, or the expression may make such order in relation to the suit as it thinks fit used in Rjule 10 of Order VIII."
A perusal of the plaint shows that the dispute raised by the plaintiff relates to infringement of his trade mark 'J K Bond' by the trade Mark 'J K Brand' being used by the defendants. The plaintiff claims to be user of Trade Mark ' J K Bond' and has alleged that defendant no.1` is user of trade mark ' JK Brand' Based on these two versions in the plaint, disputed questions of fact have been raised and are involved in the case.
From the aforesaid facts it is quite apparent that the trial court virtually debarred the defendant appelalnt from the benefit of the proviso to Rule 1 of Order VIII C.P.C. and illegally proceeded to decide the suit ex-parte.
The appeal is allowed. The ex-parte judgment and decree dated 5.11.2004 is set aside. the suit is restored to its original number and the trial court will now proceed with the suit in accordance with law.
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