Proper service of summons is essential before a court can proceed with a case, and substituted service should only be allowed as a last resort after exhausting other modes of service.

JUDGMENT :

This appeal is preferred by defendant No.9 in O.S.137/2009 on the file of I Additional Senior Civil Judge, Belagavi.

2. Respondent No.1 is the plaintiff. Respondents 2 to 9 are other defendants who have preferred cross objections. We do not find it necessary to refer to pleadings, for the appeal can be disposed of on a short point relating to service of suit summons on the appellant.

3. The appellant was placed ex-parte in the suit, the resultant effect of decree passed in the suit is that sale of suit property under sale deed dated 05.01.2009 executed by defendants 1 to 7 through their power of attorney i.e., defendant 8 in favour of appellant/defendant 9 is held to be not binding on plaintiff.

4. The main grievance of defendant No.9 is that she was living abroad when suit summons was sought to be served on her at the address given in the cause title of the plaint and therefore there was no service of summons on her.

5. Smt. Surabhi Kulkarni, learned counsel for the appellant argued that when the suit summons issued to appellant through court was returned with an endorsement that the addressee was out of India, the trial court should not have allowed the application filed by the plaintiff under Order V Rule 20 CPC and permitted publication of summons in a local newspaper. The plaintiff was also aware of the fact that appellant had gone abroad, and therefore she should have taken process to appellant’s address in the foreign country. Since defendant No.9 was not residing in India, even if summons was published in the newspaper, it cannot be held to be sufficient service. Thus seen appellant was deprived of an opportunity to contest the suit, and hence the ex-parte decree needs to be set aside and the suit remanded to trial court to enable defendant No.9 contest it, she argued.

6. Sri J.S.Shetty, learned counsel for the plaintiff/ respondent No.1 submitted that when defendant No.9 has taken up a contention that she was not in India, it is for her to prove that she was abroad. There is no irregularity committed by the trial court in ordering suit summons to be published in a newspaper and on that ground, no decree can be reversed or modified for error or irregularity not affecting the merits of the case. In support of his submission, he places reliance on section 99 of the Code.

7. Firstly we deal with section 99. According to this section no decree can be reversed or modified owing to error or irregularity not affecting merits or jurisdiction. But, in this case, reversal of a decree was sought on the ground that summons was not duly served on defendant No.9. Defendant No.9 was out of India, but the paper publication was taken in Belagavi. Section 99 is inapplicable to the context.

8. On perusal of records, we find that there was no service of suit summons on the appellant in the ordinary mode. The summons issued to the appellant for service at the address mentioned in the cause title of the plaint was not served; it was retuned with an endorsement ‘Door locked, she is out of India’. Thereafter the plaintiff filed an application under Order V Rule 20 of CPC and sought permission of the court to take out publication of summons in the newspaper “Kannadamma”. Since the court allowed the application, summons was published in that newspaper, and on 15.12.2010, the court held that service on defendant No.9, i.e, appellant sufficient and placed her ex-parte. However, defendants 1 to 8 participated in the suit proceeding.

9. In the context of above circumstance, we need to reiterate the rule that the court need not grant or permit application under Order V Rule 20 of CPC on its mere filing. The court must arrive at a satisfaction on the basis of contents of affidavit filed along with the application and other materials available on record that the defendant is residing in the address given by the plaintiff, and evading service of summons. If the process server or the postman returns the summons or notice with endorsement that ‘address