Triveni Sao vs Ramdheyan Singh

Jyoti Saran, J.—This Civil Revision application is directed against the order dated 28.3.2011 passed by learned 1st Additional District Judge, Aurangabad in Miscellaneous Appeal No. 9 of 2010/1 of 2010, whereby the learned appellate court while dismissing the appeal, has affirmed the order dated 28.5.2010 passed by 1st Subordinate Judge, Aurangabad in Miscellaneous Case No. 4 of 2006 dismissing the application filed by the petitioner under Order 9 Rule 13 of the CPC (hereinafter referred to as the ''Code'') for setting aside the ex parte judgment and decree dated 20.5.2004 passed in Title Suit No. 255 of 2002. With the consent of the parties the matter has been taken up for final disposal at the stage of admission itself.

The suit in question was filed by the plaintiff-opposite party seeking a decree for specific performance on the basis of unregistered agreement to sale dated 13.5.2000 stated to have been executed by the defendant-petitioner in relation to 1.86 acres of land for a consideration amount of Rs. 1,60,000/- of which Rs. 1,29,000/- stated to have been adjusted against different payments made by the plaintiff to the defendant in the shape of cash and crops. The balance of Rs. 60,000/- was to be paid on the execution of the sale deed. The suit was admitted on 17.1.2003 and the plaintiff was directed to file Talbana within a period of one week for issuance of notice on the defendant. Although the matter was fixed for the purpose of issuance of notice on 21.2.2003 but for the reasons best known the date was advanced and was taken up on 18.1.2003 when the trial court taking note of the filing of the requisites for issuance of summons and for issuances of notice under registered cover directed the office to issue summons. The matter was thereafter taken up on the date fixed i.e. on 21.2.2003 when an affidavit was filed by the plaintiff that the defendant was avoiding to respond to the notice. The trial court in the circumstances directed for paper publication and the matter was fixed for 20.5.2003. Again though the matter was fixed on 20.5.2003, the trial court advanced the date by almost two months and took it up on 22.3.2003 when a copy of notice by way of paper publication was submitted by the plaintiff by way of substituted service. The trial court directed the office for issuance of notice by paper publication. On the date fixed i.e. 20.5.2003, the plaintiff filed the copy of the newspaper by way of free sabut and the matter thereafter being adjourned awaiting appearance of the defendant, the trial court by order passed on 26.9.2003, in view of the paper publication by way of substituted service accepted service on the defendant and the matter was fixed for ex parte hearing. By judgment and decree passed on 20.5.2004 the suit was decreed ex-parte and direction was issued to the defendant to execute a formal sale deed with the further stipulation that if he failed to do so within the stipulated period the same would be carried out through the process of the Court. The defendant was also restrained from interfering with the possession of the plaintiff over the suit property. Upon failure of the defendant to execute the sale deed within the period of three months stipulated in the judgment and decree dated 20.5.2004 passed in the Title Suit, the plaintiff filed Execution Case No. 4 of 2004 for execution of the sale deed through the process of the Court. It is stated that notice was issued in the Execution Case which was again stated to be served on the defendant who refused to accept the same and did not choose to appear. A sale deed was thus executed through the process of Court on 3.1.2006. The plaintiff filed a Mutation Case No. 95 of 2005-06 and his name stood mutated in the records by order passed on 20.4.2006. An appeal was filed by the defendant questioning the order of mutation passed by the Circle Officer and which was dismissed on 20.1.2007.

The defendant filed an application under Order 9 Rule 13 of the Code for setting aside the ex parte judgment and decree passed in the Title Suit giving rise to Miscellaneous Case No. 4 of 2006. The trial court upon consideration of the oral and documentary evidence adduced by the parties, dismissed the Miscellaneous Case vide order passed on 28.5.2010. The defendant being aggrieved by the order of dismissal of his Miscellaneous Case preferred a statutory appeal under Order 43 Rule 1(d) of the Code and which also was dismissed by the order impugned dated 28.3.2011 of the appellate court and hence the present Civil Revision application.

Mr. Shashi Shekhar Dwivedi, learned Senior Counsel has appeared on behalf of the defendant who is the petitioner before this Court and Mr. Y.V. Giri learned Senior Counsel has appeared for the plaintiff-opposite party herein.

Mr. Dwivedi, learned Senior Counsel for the petitioner has straightway referred to the order sheet of the trial court in support of his submission that the summons was never served upon the defendant and that the trial court has committed a serious illegality in recording satisfaction despite this position. With reference to the order dated 17.1.2003 it was submitted that the suit was admitted and the plaintiff was directed to file requisites together with talbana for issuance of summons and the matter was fixed for 21.2.2003. It is stated that though the matter had been adjourned to 21.2.2003, the trial court took up the matter on 18.1.2003 itself and taking note of the filing of the summons for notice under ordinary process as well registered post with A.D., directed the office to issue summons. It is submitted that although there was no direction to the plaintiff to deposit requisites for issuance of notice under registered cover, yet he suo moto filed the same and even though he filed requisites for registered notice even then the trial court directed issuance of summon by ordinary process only and no order was passed for issuance of notice under registered post. It is stated that the matter was again taken up on the next date fixed i.e. 21.2.2003 and the trial court accepting the affidavit of the plaintiff that the defendant was avoiding appearance, directed for substituted service through newspaper publication. Again though the matter was adjourned to 20.5.2003, the matter was taken up on 22.3.2003 when the trial court directed for issuance of substituted service by way of newspaper publication. On the date fixed i.e. 20.5.2003 plaintiff filed the newspaper by way of free sabut and which was taken on record. It is submitted that the trial court thereafter by order dated 26.9.2003 on the statement of the plaintiff that the defendants are avoiding appearance despite service of summons and newspaper publication, recorded satisfaction and held the service valid and the matter was fixed for ex parte hearing. Mr. Dwivedi has submitted that a complete procedure is provided under Order 5 which has to be undergone before the trial court would record his satisfaction over service of notice. With reference to the provision of Order 5 Rule 17 of the Code it was stated that if the defendant refuses to accept copy of the summons, the serving officer is required to affix a copy of the summon on the outer door or some conspicuous part of the house and would return the original to the Court from which it was issued together with a report endorsed thereon stating the circumstances in which he has affixed the copy together with name and address of the person by whom the house was identified and in whose presence the copy was affixed. Mr. Dwivedi next referring to the provision of Order 5 Rule 19 has submitted that where a summon returned under Rule 17, is not verified by the process server by affidavit, the court concerned shall examine the serving officer on oath or cause him to be so examined by another Court and whereafter he may pass appropriate orders on the service of summons. With reference to the copy of the report of the process server, a copy whereof is placed at Annexure-2, it was submitted that there is no affidavit of the process server supporting his report rather the affirmation is that of a Nazir and which is not in tune with the rules and thus in view of the stipulation of Order 5 Rule 19, it was mandatory for the trial court to have examined the process server on oath and not having done so, the service is not complete. It was submitted that non-compliance of the mandatory provisions underlying Order 5 Rule 19 has rendered the summons invalid.

Mr. Dwivedi in support of his said submission has relied upon the following judgments:--

(i) Rabi Shankar Upadhyay Vs. Ram Kewal Ram Sonar and Others, , more particularly paragraph 3 on the issue that non-compliance of the requirement of law would render the service invalid.

(ii) Firm Harnarain Rajnarain and Others Vs. Smt. Tara Sinha, ; more particularly paragraph-7 of the judgment in support of his submission that an affirmation by the Nazir is not an affidavit of the process server as mandated under Order 5 Rule 19.

It was next submitted by Mr. Dwivedi that the order sheet in the suit though clearly manifests that there was neither any order of the trial court for filing of the requisites for service of summons by registered post nor there is any order directing for issuance of notice under registered post, yet even for the sake of assumption if it is presumed that notice was issued under registered cover, even then in absence of any satisfaction recorded by the trial court in terms of provision of Order 5 Rule 9 of the Code, the summons could not have been stated to be validly served under registered cover.

Mr. Dwivedi in support of his submission has relied upon the following judgments:--

(i) Bhagwan Singh and Others Vs. Ram Balak Singh and Another, ; with reference to the opinion recorded in paragraphs 19, 20 and 24 of the judgment it was submitted that even the notice under registered cover was neither validly issued nor validly served and that the affirmation by the Nazir on the service report is not in tune with the provision of Order 5 Rule 19 of the Code.

(ii) Express Cables Pvt. Ltd. Vs. N.S. Mukherjee and Another, .

(iii) Union of India(UOI) Vs. Sri Laxmi Oil Mills, .

Mr. Dwivedi has also relied upon a judgment of the Supreme Court reported in State of Jammu and Kashmir and Others Vs. Haji Wali Mohammed and Others, ; more particularly paragraph 11 thereof to submit that the requirements of compliance of the provisions underlying Order 5 Rule 19 of the Code has been extended even to writ petitions.

Mr. Dwivedi, with reference to a judgment of this Court reported in Ram August Tewari and Others Vs. Bindeshwari Tewari and Others, ; more particularly paragraph-11 of the judgment has submitted that a recourse to substituted service under Order 5 Rule 19 is not to be taken in a routine manner rather the recourse is to be taken only when materials are placed before the Court to show that the defendant is keeping out of the way for avoiding service. Mr. Dwivedi reverting to the order sheet placed with the supplementary affidavit has stated that it is on the very first date and on a mere statement on affidavit by the plaintiff charging the defendant from avoiding service, that the trial court proceeded to order for substituted service under Order 5 Rule 20 of the Code without recording any satisfaction that such recourse was required. It was submitted that the ex parte judgment and decree is fraught with fraud and which is manifest from Annexure-R/5 of the counter affidavit filed by the plaintiff before this Court evidencing service by registered post even when no such service was directed by the trial court. It is submitted that the petitioner charging the plaintiff with forgery have also instituted a criminal case giving rise to Aurangabad Town P.S. Case No. 166 of 2006 and in which cognizance of offence punishable under Sections 219, 420 and 120-B of the Indian Penal Code has been taken against the plaintiff and some others.

Mr. Dwivedi again with reference to an order of this Court passed in Criminal Misc. No. 9487 of 2009 has submitted that the order taking cognizance being questioned before this Court, has been negated and the quashing application has been dismissed by order passed on 10.4.2012, copy whereof is placed alongwith the reply of the petitioner to the counter affidavit of the opposite party.

Mr. Dwivedi concluding his argument has with reference to a judgment of the Supreme Court in G.P. Srivastava Vs. Shri R.K. Raizada and Others, , submitted that the Supreme Court has held that the Order 9 Rule 13 applications should be considered and disposed of with a liberal view.

The arguments of Mr. Dwivedi has been contested by Mr. Giri who sought to first question the maintainability of the Civil Revision application itself, inter alia, on grounds that there being a concurrent finding of fact as regarding service of notice on the defendant, this Court would not interfere with the finding of fact in exercise of revisional jurisdiction. With reference to a judgment of the Supreme Court reported in D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, , more particularly paragraph-8 thereof it was submitted that the High Court in exercise of jurisdiction vested u/s 115 of the Code was not competent to correct errors of fact however, gross they may be or even error of law unless it affects the jurisdiction of the Court to try the dispute. On the issue of maintainability Mr. Giri also relied upon a judgment of the Supreme Court in Shri M.L. Sethi Vs. Shri R.P. Kapur, . With reference to paragraphs 8 and 9, of the judgment, it was submitted that the exercise of jurisdiction by a High Court u/s 115, is a limited one and until such time that the subordinate court is found to have exercised jurisdiction illegally or with material irregularity, the orders need not be interfered with. With reference to the opinion recorded in paragraph-5 of a judgment of this Court reported in Mali Ram Sharma and Another Vs. Smt. Gayatri Devi, it was submitted that in a similar case where an application under Order 9 Rule 13 had been dismissed by the trial court and affirmed in appeal, when put to question before the High Court in revisional jurisdiction, this Court held that a concurrent finding may be right or wrong but unless the Court concerned has acted illegally and with material irregularity, no revision would lie. With reference to the finding of the Court recorded in paragraphs 6 to 8 of the judgment under reference, it was submitted that a similar issue regarding noncompliance of the provisions of Order 5 Rule 19 of the Code was taken by the defendant to demonstrate that the summons had not been duly served and that the affidavit sworn by the process server was not in the prescribed form though verified by Nazir but repelling the arguments this Court held that the provision was directory and that the affidavit not being precisely in the form prescribed would not render it contrary to the statutory provisions. Mr. Giri next referring to the provisions of Order 5 Rule 6, Rule 9, Rule 17 and Rule 20 submitted that notice was issued to the defendant in all the forms envisaged in the Rule i.e. under ordinary process through the process server, under registered cover with acknowledge due and by substituted service by paper publication. With reference to the order passed in appeal it was submitted that the appellate court considering the evidence on record has affirmed the finding of the trial court regarding service of summons on the plaintiff and which did not warrant any interference. In the background set up, Mr. Giri referred to the order sheet in the suit to submit that although much has been stated by, the petitioner in criticism of the procedure adopted by the trial court in the matter of service of summons but the order sheet does not reflect any legal infirmity. It is stated that the suit was admitted on 17.1.2003 and the plaintiff was directed to file Talbana etc. for service of summons and the matter was fixed on 21.2.2003 but since only a week time was given to the plaintiff to file requisites and which was filed on the following day i.e. 18.1.2003, hence the matter was taken up by the trial court on 18.1.2003 for a direction to the office for issuance of summons taking note of the fact that the plaintiff had also filed requisites for summons under registered cover. It was submitted that since the Court took notice that requisite under both the processes had been filed by the plaintiff hence it directed for issuance of summons and as a consequence summons was issued under both processes. It was submitted that whereas the refusal of the defendant to receive the summons issued under ordinary process is manifest from Annexure-R/4 to the counter affidavit which is also Annexure-2 to the Civil Revision application, his receipt of the notice under registered cover is manifest from Annexure-R/5 which stands duly proved by certification of the Superintendent of Post Office, Aurangabad addressed to the Sub-Judge, Civil Court, Aurangabad enclosed with Annexure-R/12. It is stated that despite such service the defendant was not appearing hence the plaintiff while informing the Court of this aspect requested for paper publication and which was allowed by the trial court and the notice was published in the local newspapers by way of substituted service under Order 5 Rule 20. It was submitted that the notice was duly published in the local newspapers and in view of the statutory provisions of Order 5 Rule 20(2) that would be valid service on the defendant. It was submitted that the trial court as well as the appellate court taking note of these incontrovertible circumstances certifying the service of summons as envisaged under the Act has accepted the same and which concurrent finding of the court below need not be interfered in the revisional jurisdiction. Responding to the contentions advanced by Mr. Dwivedi as regarding non-examination of the process server under Order 5 Rule 17; regarding no order being present as to issuance of notice under registered cover and regarding absence of satisfaction of the trial court for taking recourse to substituted service, it was submitted that these are mere irregularities and which are not sufficient to disturb a concurrent finding of fact arrived at by the court below in view of the proviso to Order 9 Rule 13 of the Code which mandates that an ex parte decree cannot be set aside on mere grounds of irregularity in service of summons. It was submitted that 17 witnesses had been led by the plaintiff in support of his claim regarding valid service of notice upon the defendant and the findings of the Court(s) below is based upon such evidence and this Court in revisional jurisdiction would not weigh, or re-appreciate the evidence even if there is a possibility of a second opinion. Distinguishing the case laws relied upon by Mr. Dwivedi, Mr. Giri contended that the judgment rendered in the case of Express Cables (supra) was in entirely different circumstances where the suit had been dismissed for non-prosecution and a restoration was being sought thereof. It was submitted that as the matter did not concern an Order 9 Rule 13 application, the reliance of Mr. Dwivedi on the said judgment is misplaced. With reference to the judgment rendered in the case of Ram August (supra) and Bhagwan Singh (supra) it was submitted that in each of the cases the High Court was considering the appeals arising from rejection of an Order 9 Rule 13 application and thus could venture into the evidences led by the parties which relevant circumstance is missing in the present case since there is a concurrent finding on facts by the Court(s) below, Mr. Giri next distinguishing the judgment rendered in the case of Rabi Shankar Upadhayay (supra) submitted that in the said case the trial court had not taken recourse to the other modes available under Order 5 for service of summons which has been done in the present case and thus any irregularity whatsoever stands removed by the service of notice on the defendant under registered cover as well as by the paper publication of the notice. Mr. Giri concluding his argument submitted that in the circumstances governing the case, as there are sufficient evidence demonstrating that the defendant had knowledge about the suit, any irregularity in the service of summons was not sufficient for setting aside the ex parte decree and the application being devoid of merit is fit to be dismissed.

Mr. Dwivedi in his short reply to the submissions of Mr. Giri relied upon the judgment of the Supreme Court reported in Neelakantan and Others Vs. Mallika Begum, to submit that although it is well settled that the High Court in Second Appeal or in Civil Revision would not reverse a finding of fact but the same is not an absolute proposition and where a finding is recorded without any legal evidence or on misreading of evidence or suffers from legal infirmity which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and take a different view. He submits that a similar view has been expressed by the Supreme Court in the judgment reported in Vinod Kumar Arora Vs. Surjit Kaur, . Mr. Dwivedi has submitted that the term ''perversity'' has been explained in a judgment of the Supreme Court reported in Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board and Others, and the order(s) impugned are fully covered by the said expression. With reference to the appellate Order on the issue of service of summons it was submitted that the finding is contrary to the evidence available on record and the acceptance of service of notice by the trial court as affirmed by the appellate court is contrary to the statutory provisions. Concluding his submissions Mr. Dwivedi has submitted that the service of summons being fraught by fraud, the acceptance thereof by the learned Court(s) below is based on no evidence and is a perverse finding of the Court(s) below which is fully capable of interference in the revisional jurisdiction.

I have heard learned counsel for the parties and have perused the materials on record.

Law is well settled as regarding the scope of intervention by the High Court while exercising revisional jurisdiction in a case arising from a proceeding under Order 9 Rule 13 of the Code. In fact until such time that the defendant is concerned is able to demonstrate that summons has not been duly served upon him in accordance with law or that despite service of summons, he was prevented by sufficient cause in not attending the hearing of the suit, the trial court shall not interfere with an ex parte decree. On the other hand, if the plaintiff is able to show that the defendant had sufficient knowledge about the hearing of the suit and that his non-attendance in the suit was a calculated risk which went against him or it is shown that even if there has been some irregularity in the service of summons the knowledge about the hearing of the suit to the defendant is concerned was apparent from uncontroverted evidence, even in such circumstance the trial court would not interfere with the ex parte decree.

The stage thus set for judicial review of an order arising of such proceeding, it is to be seen whether or not the defendant who is the petitioner before this Court has made out a case for indulgence despite there being a concurrent finding by the court(s) below on the issue of service of summons. This Court is aware of its jurisdiction while exercising revisional powers in a matter concluded by a concurrent finding of facts.

Mr. Giri rightly referred to the judicial pronouncements to submit that a mere error of law or fact would not suffice a judicial intervention in such matters unless it manifests an illegality or a material irregularity.

I would in this regard refer to the judgment of the Supreme Court rendered in the case of M.L. Sethi (supra) relied upon by Mr. Giri more particularly paragraph-9 thereof which is a reproduction of an extract of a judgment of the Supreme Court passed in the case of Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, and which reads as follows:--

The provisions of Section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction u/s 115, it is not competent to the High Court to correct errors of fact however gross they may be, or even errors of law, unless the said errors have relations to the jurisdiction of the Court to try the suit itself. As Clauses (a), (b) and (c) of Section 115 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked.

What would constitute a Court acting illegally or with material irregularity has been discussed in paragraph 8 of the judgment with reference to a judgment of the Privy Council reported in AIR 1949 156 (Privy Council) and is observed as follows:--

.......... the judicial committee said that Section 115 empowers the High Court to satisfy itself on three matters, (a) That the order of the subordinate court is within its jurisdiction; (b) That the case is one in which the Court ought to exercise jurisdiction; and (c) That in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied on those three matters, it has no power to interfere because it differs from the conclusion of the subordinate court on questions of fact or law.

(Emphasis is mine)

Similar opinion has been expressed by the Supreme Court in a judgment reported in Yunus Ali (Dead) through his L.Rs. Vs. Khursheed Akram, and paragraph 20 thereof reads as follows:--

It is well settled position in law that u/s 115 of the CPC the High Court cannot reappreciate the evidence and cannot set aside the concurrent findings of the courts below by taking a different view of the evidence. The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material on record by the courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction.

(Emphasis is mine)

There being thus no issues as regarding the scope of exercise of revisional jurisdiction in a matter concluded by concurrent finding of fact, it is to be seen whether the orders impugned reflects that the court(s) below have acted illegally or with material irregularity or the orders hinges on perversity as contended by Mr. Dwivedi or the contest led by the petitioner is merely for re-appreciation of evidence and a formation of a second opinion by this Court on the same given set of facts, as contended by Mr. Giri. Whereas it has been contended by Mr. Giri appearing for the plaintiff that the exercise of jurisdiction by the court(s) below is in accordance with law and on the basis of evidence on record, the argument has been contested by Mr. Dwivedi to submit that not only there has been a failure in exercise of jurisdiction by the court below as envisaged under the provisions of Order 9 Rule 13 read with the provisions of Order 5 of the Code, the findings recorded by the court(s) below is perverse and suffers from illegality and material irregularity.

The deck having been cleared it is to be seen whether on the facts and circumstances available on the record of the proceedings, the orders passed by the court(s) below requires intervention. Since the application of the defendant filed under Order 9 Rule 13 of the Code is based on the plea of non-service of summons and not that he was prevented by sufficient cause, it is to be seen whether the records support service of summons as held by the court(s) below or whether there has been an infraction of procedure rendering the finding, a ''perversity''.

By order dated 17.1.2003 the trial court while admitting the suit required the plaintiff to file requisites for issuance of notice. There is no direction to file requisites for issuance of notice under registered cover. The matter was adjourned to 21.2.2003. Even when the Court did not require any requisites for notice under registered cover, the same was filed by the plaintiff and taken note of by the trial court in the order passed on 18.1.2003. Why the matter was taken up on 18.1.2003 i.e. prior to the date fixed in the suit i.e. 21.2.2003, is not explained in the order, nonetheless the trial court directed issuance of summons. The notings in the order sheet dated 18.1.2003 reflects that notice was issued under registered cover also. On the date fixed i.e. 21.2.2003 an affidavit was filed by the plaintiff stating on oath that despite service of notice, the defendants were not filing appearance. On the mere statement made by the plaintiff on affidavit, the trial court mechanically directed for paper publication of the notice and the matter was posted to 20.5.2003. Again even when the matter was fixed for 20.5.2003, the trial court, without assigning reason took up the matter on 22.3.2003 upon filing of a draft paper notice by the plaintiff and again in a routine manner directed the office to take steps for paper publication. The matter was taken up on the date fixed i.e. on 20.5.2003 when the trial court took judicial notice of the newspaper in which the notice was published and which was submitted in the trial court by way of free sabut. The trial court thereafter adjourning the matter for some dates, accepted the service by paper publication and fixed the suit for ex parte hearing on 26.9.2003. Although much can be said about the manner in which the trial court has proceeded in the matter but suffice it to say that the procedure engrafted under Order 5 of the Code more particularly Rule 1, Rule 9, Rule 17, 18, 19 and 20 have been given a go-by. Apart from the fact that the suit was posted for completion of the process of notice on dates out of turn by advancing the date fixed by the trial court and which by itself reflects procedural infraction by the trial court, another aspect of the matter is that even when there is no direction for filing of requisites under registered cover nor there is any direction for issuance of such notice, the office rather enthusiastically has issued notice even under registered cover. Even for the sake of assumption, it is presumed that the directions to issue summons by the trial court after taking notice of the requisites filed by the plaintiff under ordinary process as well as under registered post was read as a direction for issuance of notice by both the process, even then there is no record of any order by the trial court as to what happened to those notices. In fact the order dated 21.2.2003 passed by the trial court on the affidavit of the plaintiff would mean that the trial court was not satisfied by the service of summons and hence directed for substituted service under Order 5 Rule 20 of the Code by way of paper publication. Again such orders are not to be passed in a routine manner rather the provisions of Rule 20 itself mandates a recording of satisfaction by the trial court before directing such form of notice and which is manifestly missing in the present case. While the entire contest in a matter arising from Order 9 Rule 13 application, insofar as the present case is concerned, rested on the issue of service of sum-mons but the extraordinary feature of the present case is that the mandate of law provided under Order 5 of the Code has been given a go-by by the trial court and I shall deal with them one by one.

(a) Regarding service of summons by ordinary process

The summons were issued under order dated 18.1.2003 and although an affidavit was filed by plaintiff on 21.2.2003 that the same has been served as also a copy of the summons is placed at Annexure-2 of this application and which manifests that the identification of the defendant was made by the plaintiff Ram Dhyan Singh himself and was witnessed by the brother of the plaintiff, namely, Karn Singh while the other witness is Ravindra Sharma and in which the process server has recorded a refusal of acceptance of the notice by the defendant but yet the trial court did not consider it proper to examine the process server as mandated under Rule 19 of Order 5. In fact the order dated 21.2.2003 does not even reflect whether the service of summons was either accepted or rejected but as the trial court directed for substituted service by the same order, it shall mean that the trial court was not satisfied by such service and thus the circumstance draws in favour of the defendant.

(b) Regarding service of summons by registered post

Although there is neither a direction to furnish requisites in this regard nor is there any direction for issuance of notice to this effect but even if it is presumed for the sake of argument that upon filing of requisites under registered cover, notice had been issued under registered cover with A.D. and the defendant refused acceptance thereof, the absence of examination of postal peon on such service in view of the noting present on the registered cover placed at Annexure-R/5 of the counter affidavit, would not salvage the position for the plaintiff more particularly in view of the mandate of law and in absence of any recording of satisfaction to this effect, by the trial court in the order sheet.

The two aspects having been drawn in favour of the defendant, it is now to be seen whether the substituted service as directed under order dated 21.2.2003 and 22.3.2003 and the acceptance of service under order dated 26.9.2003 is in accordance with law. The service of notice by paper publication also is not in accordance with law for many a reason. The first of such reason is complete absence of satisfaction by the trial court that the defendant was deliberately avoiding service of notice or that the summons cannot be served in the ordinary way for any other reason. There is again no evidence taken by the trial court as to whether the newspaper in which the notice was published was in circulation in the area of the defendant concerned nor any oral evidence on this score finds mention in the order sheet. On the contrary, the order sheet reflects that the trial court has proceeded to record its order holding the substituted service valid, treating the statement made by the plaintiff as a gospel truth.

In this regard, I am reminded of a judgment of the Supreme Court rendered in the case of Sushil Kumar Sabharwal Vs. Gurpreet Singh and Others, and while dealing on the issue, the Supreme Court has held that an obligation is cast upon a Court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being ''proved'' that the summons was duly served and when alone the court is conferred with a discretion to make an order that the suit be heard ex parte. It has further been held that any ''default'' or ''casual approach'' on the part of the court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex parte decree or proceed in the suit wherein he was deprived of hearing for no default of his own.

Despite the legal position so settled, the case in hand reflects a very sorry state of affairs and the mechanical manner in which satisfaction has been recorded by the trial court on the issue of summons. Although oral evidence was fed by either side at the stage of Order 9 Rule 13 proceedings in an effort to plug the loopholes but the defect is so incurable and non-observance of the mandatory procedure underlying Order 5 Rule 9, Rule 17, Rule 18, Rule 19 and Rule 20 so glaring from the records itself that it would not detain this Court to hold that the orders impugned in this application suffers from gross illegality and material irregularity inasmuch as the court(s) below have failed to exercise the jurisdiction as mandated under the provisions of the Code.

For the reasons aforesaid, the order dated 28.5.2010 passed by the 1st Subordinate Judge, Aurangabad in Miscellaneous Case No. 4 of 2006 together with the order dated 28.3.2011 passed by the 1st Additional District Judge, Aurangabad in Miscellaneous Appeal No. 9 of 2010/1 of 2010 are set aside. The Miscellaneous Case No. 4 of 2006 filed by the defendant-petitioner under Order 9 Rule 13 of the Code is allowed and the ex parte judgment and decree dated 20.5.2004 passed in Title Suit No. 255 of 2002 is set aside. Title Suit No. 255 of 2002 is restored to its original file. Since the parties are in attendance, hence the learned trial court shall consider and dispose of the suit in accordance with law expeditiously and preferably within a period of nine months from the date of receipt/production of a copy of the order.

This Civil Revision application is allowed but without any order as to costs. Let the Lower Court records received in connection with T.S. No. 255 of 2002 and Misc. Case No. 4 of 2006 be returned to the Court below concerned, in a sealed cover, forthwith.