Satya Devi vs Ram Parkash and Another

G.R. Majithia, J.—The unsuccessful plaintiff-appellant has assailed the correctness of the judgment and decree of the first appellate Court affirming on appeal those of the trial Judge whereby his suit for declaration that the decree passed in Civil Suit No. 387 decided on January 25, 1973 was null and void was dismissed, in this regular second appeal.

The facts: -

Dev Raj, father of defendants No. 1 and 2/respondents (hereinafter defendants No. 1 and 2), was owner of more than 100 acres of land in village Matarsham, Tehsil and District Hissar; that he was a big landowner and in order to save his land from being declared surplus, he transferred the same in favour of defendants No. 1 and 2 and later on sold the same as their guardian; that defendants No. 1 and 2 brought a suit to challenge the sale, which was registered as Suit No 387 and decided on January 25, 1973; that in the said suit, the plaintiff-appellant (hereinafter the plaintiff) was impleaded as a defendent and that suit also related to possession of the land comprised in Killa Nos. 57/24 and 25 and other land alleged to have been sold; that the plaintiff alleged his possession on land comprised in Killa Nos. 57/24 and 25 as owner having got it from his mother, who was allotted the same during consolidation; that defendants No. 1 and 2 had no right title or interest in that land and that the decree passed in Civil Suit No. 387 decided on January 25, 1973 would not bind him since he was proceeded ex-parte.

The defendant-respondents denied the allegations made in the plaint and pleaded that the decree passed in Civil Suit No. 387 decided on January 25, 1973 was unassailable; that the plaintiff was a party defendant in the suit; that he did not put in appearance and he was served by substituted service and it would be deemed to be a valid service.

The Court below, on appreciation of evidence, found that the Plaintiff was a party defendant in Suit No. 387, decided on January 25, 1973 Summons were issued to him in that suit and report was received from the Process Server that the plaintiff was residing a Haridwar and in the light of that report he was ordered to be serve by substituted service by an insertion of notice in the newspaper "Hindu Jullundur". It was further found that the substituted service was as good as personal service and they refused to go into the merit of the decree passed in Civil Suit No. 387 on the ground that the same could only be challenged by an appeal against the ex-parte decree and not in the instant suit.

The first question arising for determination is whether substituted service was validly ordered in Civil Suit No. 387 decided on January 25, 1973. On the date when the substituted service was ordered, the un-amended CPC was applicable. The substituted service could only be ordered by the Court under Order 5, rule 20, Civil Procedure Code, 1908. Before ordering substituted service, the Court has to satisfy itself that the condition on which it can alone be ordered exists, namely, that the defendant is keeping out of the way to avoid service or that for any other reason service cannot be effected in the ordinary way. The Court must record in writing the fact of its own satisfaction about defendant''s evasion of service. In the instant case, no such satisfaction appears to have been recorded by the Court. The substituted service was only ordered because it was reported by the Process Server that the plaintiff was residing at Haridwar. This report could not serve as the basis for arriving at a satisfaction that the plaintiff (defendant in Suit No. 387) was evading service or that summons could not be served upon him in the ordinary way. Moreover, it was imperative for the defendant to establish that the notice was published in the newspaper which had such circulation as in the normal course it would reach the defendant in time. The defendant has to establish that the newspaper in which notice is published was in circulation in the normal course in the vicinity in which the defendant resided at the relevant time No such proof has been led in the instant case. In S.V.P. Chockalingam Chettiar Vs. V.C. Rajarathnam and Others, , it was held that a valid substituted service of a notice should conform to the conditions prescribed in Order 5, rule 20, Civil Procedure Code, 1908 and the relevant observations read thus:-

"Rule 20 of Order 5, CPC provides for substituted service, the main purpose of it is to bring it to the notice of the person to whom it is intended. Substituted service cannot be regarded as an idle formality to be gone through. The Code intends it as a substitute to actual, personal service. Unfortunately the learned Subordinate Judge appears to have thought that as substituted service had been ordered by the Court and effected the question of the sufficiency of it will no longer arise. That however is not the correct way of approaching the question. A valid substituted service of a notice should conform to the conditions prescribed in Order 5, Rule 20, Civil Procedure Code. If it does not conform to that rule, service will have to be regarded as not in accordance with law and therefore not sufficient."

In the instant case, on the proved circumstances of the case, the substituted service could not be ordered against the plaintiff. The report of the Process Server on the back of the summons issued to the plaintiff at his village address indicates that he was not residing at the given address but was residing at Haridwar and from that report it could not be inferred that the plaintiff was evading service. In this context, it would be relevant to refer to the following observations of the Lahore High Court in (Firm) Tara Chand-Hukam Singh v. Santokh Singh (1935) 37 P.L.R. 121:-

" xxx xxx Thus it would appear that the plaintiff knew the where about of Arun Singh and in spite of that fact he obtained by a false representation an order for substituted service by giving the Court to understand that the defendant, Arun Singh, had been deliberately avoiding service. An order for substituted service therefore was obtained by practising fraud upon the Court. In view of these circumstances, the Court rightly held that Arun Singh had not been properly served as required by law and that the ex-parte proceedings against him were not binding on him."

Moreover, there is no evidence brought by the defendants on record that the newspaper "Hindu, Jullundur" in which notice was published was in ordinary circumstances in circulation in the vicinity in which the plaintiff last known to have resided and in ordinary circumstances he would have the knowledge of that notice. Substituted service cannot be considered to be proper in accordance with law even on this ground also. The last known residence of the appellant was Haridwar and not District Hissar where this newspaper had not been in circulation. In this context, it will be relevant to refer to the following observations in Dina Nath v. Dev Raj 1970 R.C.J. 722, at page 723: -

"5 xxx xxx xxx The substituted service has only meaning providing having regard to the circumstances of the case, there is every reasonable chance of the notice of service coming to the knowledge of the person who is sought to be served. This cannot be said in the present case, the reasons being (a) that there is no daily Tarjuman at Ludhiana in which the publication of the notice was to be made according to the order of the Rent Controller, (b) that if it was intended by the Rent Controller that it should be in the weekly Tarjuman, Ludhiana, it has not been shown that it is a paper which has such circulation that in the normal course of things it should have reached the tenant or could have reached him, and (c) that assuming that the tenant was at Ludhiana, it has not been shown that weekly Tarjuman, Ludhiana, is paper the publication of notice in which would in the ordinary circumstances come to the knowledge of the tenant whether he is himself noticing it or some relation or acquaintance of his is noticing the same. Such a publication, the attendant circumstances of which indicate that it could not possibly have conveyed knowledge of the pendency of the eviction application against- the tenant to him, cannot be considered as proper substituted service on the tenant in accordance with law. It is in these circumstances that the ex-parte order of eviction against the tenant cannot be maintained."

In the instant case, the plaintiff having not bee" served in the earlier suit, the decree in that suit will not be binding on him and will be rendered void. The decree passed in Civil Suit No. 387 decided on January 25, 1973, Exhibit P-2, is invalid insofar as it concerns the plaintiff. The defendants, if they so choose, can proceed with the suit from the stage when ex-parte proceedings were ordered against the plaintiff and he was ordered to be served by an insertion of notice in the newspaper.

For the reasons stated above, the appeal succeeds the judgments and decrees of the Courts below are set aside and the plaintiff''s suit for declaration that the decree passed in Civil Suit No. 387 decided on January 25, 1973, Exhibit P-2, is null and void and does not bind him, is decreed and as a consequential relief, the defendants are restrained from interfering in the peaceful possession of agricultural land measuring 16 Kanals comprised in Rectangle No. 57, Killa Nos. 24 and 25, situated at village Matarsham, Tehsil and District Hissar. However, the other defendants, if they so desire, can join the proceedings in Civil Suit No. 387, by moving a proper application to the Court, from the stage when the ex-parte proceedings were ordered against them. In the circumstances of the case, there will be no order as to costs.