Abdul Rashid vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.

By this petition, the petitioner seeks to challenge the legality, validity and propriety of the order dated 07.11.2008 (Annexure P/1) passed by the learned Additional District Judge, Bilaspur, passed in Civil Suit No. 06-A/2008 (Abdul Rashid Vs. Jimmi Barjorji Karbari and three others), whereby the application of the petitioner filed under Order 5 Rule 20 read with Section 151 of the Code of Civil Procedure, 1908 (for short, "CPC"), was turned down.

The brief facts, in nutshell, are that the petitioner/plaintiff filed a civil suit for declaration of title and possession before the court below. The suit has been instituted on the ground that the petitioner/plaintiff has purchased the double storied suit house for Rs.6,00,000/- in the year 1993 from the respondents No. 2 to 4, situated at Juna Bilaspur within the premises of Municipal Corporation, Bilaspur, Ward No. 14, Vinoba Nagar, bearing Khasra Nos. 661/2, 646/5, 661/3 & 661/4 admeasuring 6108.69 sq. ft. The possession of the suit house has been handed over to the petitioner/plaintiff and one document to that effect was also executed by the respondent No. 3 on 08.07.1993 (Annexure P/3). The petitioner has already paid the entire amount of the respondents, but they are not executing the sale deed in favour of the petitioner. Thereafter petitioner filed a suit against the respondents before the court blow on 17.07.2008 and on the same day notices were directed to be issued to the respondents. The petitioner paid the process fee on 17.07.2008 (Annexure P/4). On 11.09.2008 the notices of the respondents No. 2 to 4 returned unserved and the notice could be served only on respondent No. 1/defendant and the case was adjourned to 29.09.2008. On 29.09.2008 again notices were directed to be issued to the respondents No. 2 to 4 by ordinary post as well as by registered AD within three days and the case was fixed on 07.11.2008. On 29.09.2008 the petitioner also paid the process fee (Annexure P/5) and the notices were again issued to the respondents No. 2 to 4. On 07.11.2008 notices sent to the respondents were received back unserved with an endorsement that the respondents No. 2 to 4 were not residing at the given address. On 07.11.2008 the petitioner moved an application under Order 5 Rule 20 of the CPC stating that since the notice sent to the respondents 2 to 4 returned unserved twice with a endorsement that the respondents were not residing at the given address, the petitioner may be permitted to serve the respondents No. 2 to 4 through paper publication. The court below by order dated 07.11.2008 has rejected the said application. Hence, this petition.

Learned counsel appearing for the petitioner submits that the trial Court while dealing with the said application ought to have appreciated the sole object of the provision of Order 5 Rule 20 of the C.RC. i.e., the other party should not be condemned unheard. Learned counsel further submits that the trial Court ought to have permitted the petitioner to take recourse to the provisions of law since the petitioner has no knowledge of the correct address of the respondents. The trial Court ought to have appreciated that the petitioner has made all efforts to serve the respondents through notices, but the respondents could not be served. Further, the trial Court has grossly erred in holding that it is incumbent on the plaintiff to give correct address of the defendants. The courts below have not at all appreciated the facts and circumstances of the case in its letter and spirit and passed the orders, therefore, the order passed by the trial Court is illegal and contrary to the provisions of law and the same deserves to be quashed.

I have heard learned counsel appearing for the petitioner, perused the pleading and documents appended thereto.

On perusal of the order dated 07.11.2008 (Annexure P/1) it appears that the trial Court has rejected the application filed by the petitioner under Order 5 Rule 20 of the C.P.C., holding that it is incumbent on the plaintiff/ petitioner to know the correct address of the defendants/respondents to serve them, therefore, the petitioner cannot be permitted to serve them through advertisement.

Order 5 to the CPC deals with issue and service of summons. Order 5 Rule 20 of the CPC provides for substituted service, which reads as under:

Substituted service: (1) Where the Court is satisfied 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 the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court House, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. [(1-A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain].

(2) Effect of substituted service - Service substituted by order of the Court shall be as effectual as if it has been made on the defendant personally.

(3) Where service substituted, time for appearance to be fixed: Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.

On bare perusal of the provisions of Rule 20 of the CPC it is obvious that the Court has to be satisfied that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court House, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

If the above stated modes of service have been exhausted then the court may order service by advertising in a newspaper. In the present case the petitioner has not attempted to produce correct address of the defendant. Thereafter he has not taken any action to serve the humdust notice by affixing a copy of the summon. Thus, at this stage the Court has rightly rejected the publication of summon in the newspaper. Accordingly, the petitioner/plaintiff should first take steps to affix the notice on the correct and proper address of the defendant. If it was not possible to serve the summons on the basis of above prescribed modes, the Court may consider to permit the service of summons by advertising in newspaper. Thus, the order impugned is in accordance with law. I am of the considered opinion that the finding of the court below does not suffer from jurisdictional error, irregularity or illegality. Thus, the order is unexceptional and needs no interference.

It is well-nigh established that this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering with the order passed by the courts below, expect in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present case.

In view of the foregoing, this petition is dismissed, in limine. However, liberty is reserved to the petitioner to take above stated steps for serving summons before taking recourse to advertisement in newspaper.

Consequently, LA. No. 1 also stands dismissed.