Sitaram vs Diwakarkant

The plaintiff brought a suit against Diwakar Kant, for the recovery of Rs. 1,200/-which had been borrowed by his father, who has died since. From the record before me it seems that the summons against the defendant were sent on 25-3-52 to the Court of Munsiff, Guna. The process-server returned the summons with an endorsement that the defendant lived in village Sungai, and that the village was not within the jurisdiction of the Court. When the summons returned unserved, the plaintiff applied to the Court for substituted service: This application was allowed and the Court ordered that the summons be sent to the defendant through registered post. Later on, the court also ordered that the summons be published in the newspaper. This was done and when the defendant did not appear, it passed an ex-parte decree on 19-9-52. On 3-7-53, the defendant applied to the Court for setting aside the ex-parte decree on the ground that he acquired knowledge that a decree had been passed against him on 11-6-53 and, that no summons were ever served on him. The trial Court rejected the contention of the defendant and refused to set aside the ex-parte decree. On appeal the Civil Judge First Class, Gwalior, who was the appellate Authority, allowed the appeal and set aside the ex-pone decree. It is against this order that the present revision is filed.

From the facts that I have given above, it is obvious that no attempt to serve the summons on the defendant was at all made. The summons that were sent to the Munsiff''s court, Guna, were returned unserved, not because the defendant could not be found but because the process-server did not go to the village in which the defendant lived on the ground that the village was not within the jurisdiction of his court. In these circumstances the summons remained unserved and instead of sending the summons to the Court within whose jurisdiction Sungai village lay, on the application of the plaintiff, the court ordered substituted service, first by sending the summons through the registered post and subsequently by having the summons published in the news-papers. Both these methods which the trial Court adopted are wrong and are not provided for in the Civil Procedure Code. Order 5 of the C.P Code deals with the issuing of summons for service on the defendant. Order 5 Rule 20 of the CPC lays down in what circumstances substituted service should be ordered and how that should be done. Order 5 Rule 20 of the CPC runs as follows:--

(1) Substituted service: -- 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 there of 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.

(2) Effect of substituted service: Service substituted by order of the Court shall be as effectual as if it had 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.

From this it is obvious that before ordering substituted service, the Court must be satisfied that the defendant is avoiding service of summons. In the present case no question of avoiding the summons arises, because the process-server never went to the village where the defendant resided. Again the manner in which the substituted service is to be effected is that the summons shall be affixed in some conspicuous place of the Court-house, and, also upon some conspicuous part of the house where the defendant is known to have last resided. But the trial Court did nothing of the kind. Thus it is clear that the law was honored more in breach than observance by the learned trial Court.

For reasons stated above I see no reason to interfere in revision and dismiss the revision with costs,