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Judgment
Harbans Lal, J.—The Petitioner filed a suit against the Respondent firm in the Court of the Subordinate Judge Second Class, Fazilka for the recovery of Rs. 3,934.58. The summons was ordered to be issued for appearance of the Respondent-Defendant on October 8, 1970, for the first time, for December 9, 1970. On this date, the summons had not been served nor was that received back and the Court ordered the summons to be sent through registered post for January 15, 1971, on which date the summons was received back with an endorsement by the postman of the registered envelope that the addressee had "refused". On January 15, 1971, the Subordinate Judge First Class, Fazilka, passed the following order:
I am, therefore, satisfied that the Defendant is intentionally evading service. I therefore, order that he be summoned by Munadi and affixation of the summons for 11th February, 1971. PF. and Munadi charges within two days.
The report regarding the proclamation was not received on February 11, 1971 and the case was thus adjourned to February 18, 1971. On that day also, no report was received and the Subordinate Judge passed the following order:
Present counsel and the Plaintiff. Munadi not made even after awaiting. Hence the Defendant be served by publication in Daily Akali Patrika on deposit of necessary publication charges. To come up on 19th. March, 1971.
On March 19, 1971, ex parte proceeding wore ordered against the Respondent as the publication had been made in the newspaper. After recording evidence of the Plaintiff, ex parte decree was passed on April 16, 1971.
The Defendant-Respondent, submitted an application under Order IX Rule 13, Code of Civil. Procedure (hereinafter to be referred to as the Code), for setting aside the ex parte decree on July 21, 1971. It was alleged in the said application that the Defendant bad not been served, that he came to know of the ex parte decree having been passed against him on July 19, 1971 and thus the application was within time from the date of the knowledge of the said decree. These allegations were refuted by the Plaintiff-Petitioner. The following issues were framed:
Whether the application is in time ?
Whether there are sufficient grounds and cause to set aside the ex parte decree dated April 16, 1971 ? After the evidence of the parties had been recorded, the trial Court dismissed the application of the Defendant-Respondent holding that the application had been filed after the expiry of limitation of thirty days and that there was no sufficient cause proved to warrant the setting aside of the ex parte decree. An appeal was filed by the Defendant-Respondent and the learned District Judge, Ferozepur vide his order dated January 9, 1975, reversed the decision of the trial Court and set aside the ex parte decree. It was held inter alia that "due service" had not been effected on the Defendant, that the application was within time from the date of the knowledge of the ex parte decree and that there was sufficient cause for setting aside the said decree. The present revision petition has been filed by the Plaintiff-Petitioner against that order.
The main and the important question relating to both the issues Nos. 1 and 2 is whether "due service" had been effected on the Defendant-Respondent. It is crystal clear from a perusal of the various orders passed by the trial Court from October 3, 1970 to March 19,1971 that the summons sent in ordinary manner had neither been served on the Defendant-Respondent nor received back when it was ordered that the summons be sent by registered post. When the summons sent through registered post was received back with an endorsement on the registered cover that the same had been refused by the Defendant-Respondent without verifying whether the summons had been sent along with a copy of trie plaint or not, as required under Order v. Rule 2 of the Code, the learned Subordinate Judge ordered on January 15, 1971, for affixation of the summons and also for proclamation by "Munadi". It may be mentioned here that the District Judge, while deciding the appeal filed by the Defendant-Respondent, opened the envelope sent through registered post and found that a copy of the plaint had not sent along with the summons. No report was received regarding the proclamation in the village by beat of drum (Munadi) or regarding affixation of the copy of summons on the house of the Defendant-Respondent. In view of this, it was executed that the trial Court would again order for affixation and proclamation by Munadi, but it is not clear from his order dated February 18, 1971 why this order was changed, and it was ordered that publication may be made in Akali Patrika. Substituted service can be ordered only, if the pre requisite conditions as required under Order v. Rule 20 of the Code are satisfied, Rule 20 of Order v. of the Code is reproduced below:
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.
Service substituted by order of the Court shall be as effectual as if it had been made on the Defendant personally.
Where service is substituted by order of the Court, the Court sfiall(sic)ix such time for the appearance of the Defendant as the case may require.
From a perusal of this provision, it is clear that the following conditions must be fulfilled to the satisfaction of the Court before ordering substituted service,
(i) that the Defendant is keeping out of the way for the purpose of avoiding service ; and
(ii) that for any other reason, summons cannot be served in the ordinary way.
Even in the case of substituted service, a copy of the summons has to be affixed on a conspicuous place in the Court house as well as upon some conspicuous part of the house in which the Defendant is known to have last resided or carried on business or personally worked for gain. In the present case, there was no warrant for the trial Court to order, in the first instance, that the summons be sent by registered post when the summons sent in the ordinary manner had not been received and there was absolutely no report to the effect that the Defendant-Respondent was evading service. When the Court ordered service by affixation and Munadi on January 15, 1971, it did not apply its mind to the requirements of the mandatory provisions of the law as contained in Order v. Rule 2 of the Code, that the summons must be accompanied by a copy of the plaint. Strongly enough, even this order regarding the affixation and Munadi was not pursued and all of a sudden, on February 18, 1971, publication in the Akali Patrika was ordered. From all these orders, it is not possible to conclude that the trial Court had at all applied its mind to satisfy itself if substituted service through publication in the newspaper was warranted. The learned District Judge, under the circumstances, came to the following conclusion:
The learned Subordinate Judge, in these circumstances, was not having any material before, which could indicate that the Defendants were keeping out of the way for the purpose of avoiding service or that the summons could not be served on them in the ordinary manner. He was, therefore, not justified in ordering substituted service and directing that the Defendants be served through proclamation in a newspaper.
This finding is well founded and no flaw what saver can be found with the same. It appears that the trial Court in its over anxiety to dispose of the case finally with despatch and speed did not care to look to the provisions of Order v. Rule 2 and Order v. Rule 20 of the Code and did not even care to think that undue haste could tesult in palpable injustice to the Defendant-Respondent, nor could it serve the cause of justice in disposing of the case in such a casual manner. Some times, it happens that the Subordinate Judges do not mind giving adjournment after adjournment till the case becomes more than one year old. The present is the case on the other extreme in which the Subordinate Judge was anxious to finally decide the case unmindful of the disastrous consequences to the cause of justice. While it is true that the rules of procedure should not be interpreted too technically or in a rigid manner which may thwart the cause of substantial justice, but all the same, these rules are intended to ensure that injustice is not done to either of the parties. Order v. Rule 2 of the Code in providing that a copy of the plaint must accompany the summons has laid down a very salutary principle, strict compliance of which is essential for not only | doing justice to the Defendant, but also for ensuring speedy administration of Justice. It has generally been seen that the summons sent to the Defendants are not generally accompanied by copies of the plaints. The result is that even if the Defendant is served, on appearance on the date fixed, he is justified in praying for a copy of the plaint and getting the case adjourned for filing the written statement This necessarily-results in unnecessary delay which could be easily avoided if the Subordinate Judges issue strict instructions to the effect that a copy of the plaint must accompany the summons. Similarly, the Courts have to be very careful in ordering substituted service and not to act in a manner that an impression may be caused that they have become a party to the maneuvers of the clever Plaintiffs that ex parte proceedings may be ordered against the Defendants on one pretext or the other and thus ex-parte decrees may be obtained so far as the present case is concerned, there was absolutely no warrant or justification to order publication in the newspaper without even waiting for affixation of a summons on the house of the Defendant-Respondent and proclamation by beat of drum in the locality where the Defendant Respondent was residing.
Mr. G.R. Majithia, the Learned Counsel for the Petitioner, has urged that the requirements of Order v. Rule 2 of the Code that the summons should be accompanied by a copy of the plaint are Not mandatory and that the summon can be even sent or served without a copy of the plaint and as such, the service will be "due service". I have not been able to persuade myself to agree with this contention. Order v. Rule 2 of the Code clearly lays down that "every summons shall be accompanied by a copy of the plaint or if so permitted, by a "concise statement". The word "shall" in this provision is clearly and expressly mandatory in nature as the same is intended to ensure that the Defendant is not taken by surprise. It is only when the Defendant receives a copy of the plaint at the time of the service of the summons on him that he has a clear picture of the nature of the suit having been filed against him and the nature of the pleas that he is required to meet on appearance in the court on the date fixed I am supported in this view by a decision of this Court in Jagan Nath and Anr. v. Tek Chand 1974 PLR 39, Tuli, J., (as he then was) in Jagan Nath''s case (supra) in which the facts were almost similar to the present case, held as under:
Mere service of the summons is not synonymous with ''due service'' as used in Order IX Rule 13 of the Code of Civil Procedure, merely because the Defendant had been served with a summons of the suit without a copy of the plaint, the learned trial Court had no jurisdiction to proceed to decide it ex-parte. That could be done only if the Defendant had been duly served that is, he had been served with the summons along with a copy of the plaint. Refusal to take delivery of the notice sent by registered post can be deemed to be prima facie proof of service of the document sent in that registered envelope, but not of any other document which was required under the law to accompany that document, but did not.
The Learned Counsel for the Petitioner has challenged the correctness of the judgment in Jagan Nath''s case (supra). However, I do not agree with the same. In my considered opinion, Order v. Rule 2 of the Code has been absolutely correctly interpreted in Jagan Nath''s case (supra).
The Learned Counsel for the Petitioner, then contended that the trial Judge had unfettered discretion in ordering substituted service. Under Order v. Rule 20 of the Code, once the discretion is exercised and substituted service is effected, as in the present case, through publication in the newspaper, it is a vaild service for all purposes and in accordance with Sub-rule (2) of Rule 20 of Order v. of the Code, such a substituted service will be treated as effective as if it had been made on the Defendant personally. For this, he has placed reliance on Hans Raj v. Narain Singh AIR 1931 Lab. 118, and M.C. Rajagopalachari Vs. P.K. Subramaniam, . In Hans Raj''s case (supra), two attempts had been made to serve the Defendants personally, bat failed. It was after that the Court ordered substituted service under Order v. Rule 20 of the Code. In these circumstances, it was held as under:
The advisability of effecting service by substituted service is a matter primarily for the trial Court and if it is satisfied on the matters set out in Order 5 Rule 20, it should order substituted service which is as effectual as if service was made personally. An appellate Court has no power to go into the question whether the substituted service ought to have been ordered unless the trial Court has made some error of law.
In M.C Rajagopalacharai''s. (supra), it was held that Order v. Rule 20 of the Code invests the Court with jurisdiction to order substituted service where it 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. Thus, it will be seen that in both the cases, mentioned above, the High Courts upheld the decision of the trial Court to order substituted service because genuine efforts had been made to serve the Defendant in the ordinary manner, but the same had not proved successful The discretion conferred on the Subordinate Judge under Order v. Rule 20 of the Code is not arbitrary and has to be exercised judicially and on accepted principles of judicial discretion. In the present case. I have no doubt in my mind that the trial Court did not apply its mind to the provisions of Order v. Rule 20 of the Code at all and the alleged satisfaction of the Subordinate Judge was, in fact, "no satisfaction" in the eye of law.
While challenging the correctness of Jagan Nath''s case (supra), the Learned Counsel for the petitions'' drew my attention to a Full Bench judgment of this Court in Balkishan Dass v. The Commissioner of income tax, Patiala AIR 1957 P&H. 103. According to the Learned Counsel, the law has been laid down in Balkishan Das''s case (supra) that once a notice is sent by registered post, it will be deemed to be "due service" for all purposes whether the summons is served on the Defendant or it is refused irrespective of the fact whether the summons sent through registered post is accompanied by a copy of the plaint or not. I do not agree with this contention. The question referred by the income tax Tribunal to the High Court, which was ultimately decided by the Full Bench in Balkishan Das''s case (supra) was only this: Whether on the facts and in the circumstances of the case, the service of the notice u/s 34 (income tax Act, 1922) on the Assessee was invalid at law as a copy of the notice was not affixed at any conspicuous place in the Court-house or at any conspicuous place in the income tax office. The question whether service through a summons not accompanied by a copy of the plaint will be "due service" or not, was not before the Full Bench. Therefore, the judgment of the Full Bench in Balkishan Das''s case (supra) does not in any manner go contrary to the judgment in Jagan Nath''s case (supra).
After considering all the facts and circumstances of the present case, I am of the considered opinion that the service on the Defendant -Respondent whether through registered post or by publication in the Akali Patrika was not "due service" and the finding of the lover appellate Court, in this respect, is affirmed.
The next contention of the learnad counsel for the Petitioner is that the application under Order IX Rule 13 of the Code, submitted by the Defendant-Respondent on July 2(sic), 1971, was time-barred, as the same was preferred more than 30 days after the ex parte decree passed on April 16, 1971. The limitation prescribed in such a case is provided under Article 123 of the Limitation Act, 1963, where limitation of thirty days has been provided for setting aside the ex parte decree and the period begins to run from "the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree." There was a conflict of judicial opinion as to what is meant by "due service" for the purpose of computing the period of limitation in such cases especially where the service was effected by substituted service. In order to remove this conflict, the following Explanation was added to Article 123 of the Limitation Act, 1963:
For the purpose of this article, substituted service under Rule 20 of Order v. of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service.
Thus, when Article 123 of the Limitation Act, 1963 is read along with the Explanation appended to it, there can be no doubt that in the present case, the period of thirty days will be counted from the date when the Defendant-Respondent (the applicant) had the knowledge of the ex parte decree. The ex parte decree was passed on April 16, 1971. According to the Defendant-Respondent, be came to know of the said decree on July 19, 1971, when the Reader of the trial Court in the present case was examind as a witness in the Court of the Subordinate Judge at Amritsar in the suit which had been filed by the Defendant-Respondent against the present Plaintiff-Petitioner and in his statement, for the first time, the Reader stated that the ex parte decree had been passed on April 16, 1971. As against this, the contention of the Learned Counsel for the Plaintiff Petitioner is that the Defendant Respondent had, in fact, got knowledge of the pendency of the suit from which the precent proceedings have arisen, on February 2, 1971. According to him, the Defendant-Respondent filed a suit against the present Plaintiff Petitioner in the Court of the Subordinate Judge, at Amritsar. In that suit, the Plaintiff-Petitioner filed an application u/s 10 of the Code for stay of the proceedings in the said suit on January 18, 1971, in which it was specifically mentioned that the suit at Fazilka bad been filed by the Plaintiff-Petitioner against the Defendant-Respondent and was pending. Reply to that application was filed by the Defendant-Respondent on February 2, 1971 and on that day a certified copy of the plaint pertaining to the present suit was given to the Defendant-Respondent in the Court at Anvitiar. On the basis of these facts, it is urged that the Defendant-Respondent definitely came to know of the pendency of the present suit of February 2, 1971. If the Defendant-Respondent had been careful and vigilant, he must have kept himself well informed about the proceedings in the present suit and must have come to know of the passing of the ex parte decree on April 16, 1971, as soon as it was passed or a few days after. The learned District Judge repel''ed the contention of the Plaintiff-Appellant in this regard and I agree with the same. Under Article 123 of the Limitation Act, 196(sic), thirty days are to be counted either from the date of the passing of the ex parte decree or from the date of the knowledge of the passing of the ex parte decree and not from the date of the knowledge of the pendency of the suit. The Defendant-Respondent was not bound to appear in Court at azilka in the present suit by himself and was within his rights to wait for the summons from the Court and it was not incumbent upon him to presume that because the summons was not received by him for sometime, therefore, the ex parte decree must have been preyed against him. The learned District Judge as a result of his appreciation of evidence on record came to a firm rending that the Defendant-Respondent got knowledge of the passing of the ex parte decree on July 19, 1971. This is a finding of fact and there is nothing wrong with the same. It is not within my do main to interfere with or disturb such a finding of fact.
Lastly, the Learned Counsel for the Petitioner has vehemently urged that even if the application of the Defendant Respondent under Order IX Rule 13 of the Code is held to be within time on the basis of the Explanation to Article 123 of the Limitation Act, 1963, the same has to be decided on merits. Uless the Defendant Respondent was able to establish that he was prevented by any sufficient cause from appearing when the suit was called for hearing, this application has to be dismissed According to him, the trial Court correctly held that the Defendant-Respondent had not been able to prove "sufficient cause". The Learned Counsel has ralisd upon Kanshi Ram Mohan Lal Vs. Smt. Bhagwan Kaur, . My pointed attention has been drawn to the following observations of Mehar Singh C.J., in Kanshi Rami''s case (supra):
Once he is permitted to make an application for setting aside a decree in spite of service under Rule 20 of Order 5, the merit of the matter still remains for him to meet, that is to say it still remains for him to prove that he was not duly served. If he fails in that, then while his application shall have been made within time but he would fail on the merit of his application. So the Explanation to Article 12) does not either abrogate in any way sub rule (2) of Rule 20 of Order 5 or operate as a limitation of any kind of that sub-rule.
In Kanshi Ram''s case (supra), the application of the Respondent to set aside the ex parte order of eviction by the Rent Controller was held to be within time, but the same was remitted back to the Rent Controller to be decided on merits. In my considered opinion, the Learned Counsel for the Petitioner cannot derive any advantage from this judgment to get a finding that the application of the Defendant-Respondent under Order IX Rule 13 of the Code should be dismissed. I entirely agree with the proposition of law as observed by Mehar Singh, C.J , in Kanshi Ranfs case (supra). So far as the decision of the application on merits in concerned, we have to fall back upon the provision of Rule 13 of Order IX of the Code. It is reproduced below:
In any case in which a decree is passed ex parte against a Defendant, he may apply to the Court by which the decree was parsed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;
Provided that where the decree is of such a nature that it cannot be set aside as against such Defendant only it may be set aside as against all or any of the other Defendants also." Its perusal shows that the ex parte decree is to be set aside in either of the following two circumstances:
(i) if the Court is satisfied that the summons was not duly served; or
(ii) if the Court is satisfied that the Defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing.
In the present case, in view of the finding of the learned District Judge that the Defendant-Respondent was "not duly served" and the same finding having been upheld by me in the earlier part of this judgment, the application of the Defendant Respondent was bound to be accepted and the ex parte decree set aside. The defendent Respondent was not required to prove any further "sufficient cause" but even if he was required to do so, from the evidence on record, it is clear that the Defendant-Respondent had fully succeeded in establishing "sufficient cause" on account of which he could not appear in the suit when it was called on for bearing on April 16, 1971 when the ex-parte decree was passed. As held earlier, the mere fact that the Defendant-Respondent had knowledge of the pendency of the present suit on February 2, 1971 when a certified copy of the plaint was produced by the Plaintiff-Petitioner in the court at Amritsar, is not of any relevance to weaken or to contradict the case of the Respondent.
Mr. R.S. Bindra, Learned Counsel for the Defendant-Respondent, raised a preliminary objection in the beginning, that in the present ease, the revision petition was not maintainable. According to him, the law has been clearly laid down in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, . According to him, even if this Court came to the conclusion that the finding of the lower appellate Court is erroneous, that by itself was not sufficient to be interfered with in revision unless such a finding affected the jurisdiction of the lower Court. I fully agree with the proposition of law advanced by the Learned Counsel. However, I allowed the Learned Counsel for the Plaintiff Petitioner to address arguments at length because the point of limitation was involved.
For the aforesaid reasons, there is no merit in this revision petition and the same is dismissed with costs.