Mandatory service requirements under Order V Rule 17 must be strictly followed; failure to do so invalidates ex-parte proceedings.

JUDGMENT :

H.P.Sandesh, J.

Heard learned counsel for appellant and also learned counsel appearing for respondent.

2. This Miscellaneous First Appeal is filed against the order passed in Misc.No.25012/2022 rejecting the petition filed under Order 9 Rule 13 r/w Section 151 of C.P.C with cost of Rs.1,000/-.

3. The factual matrix of the case before the trial Court is that when the suit is filed for relief of the judgment and decree on the ground that defendant is liable to pay a sum of Rs.8,80,000/- and hence Court has issued summons against the appellant herein and the same was returned at the first instance 'unserved' and in the second instance when the notice was ordered through RPAD, it was returned with an endorsement 'defendant is not in station' and thereafter an application is filed invoking under Order V Rule 20 of C.P.C, seeking paper publication against the appellant herein and the same was allowed and he was placed ex-parte. The trial Court proceeded to record the evidence and passed the judgment and decree. Being aggrieved by the impugned judgment and decree, Misc.Petition is filed invoking Order 9 Rule 13 r/w Section 151 of C.P.C, wherein the ground that was urged is when the suit summons was ordered to him had been returned unserved and respondent by contending that petitioner was intentionally avoiding service of notice filed an application under Order V Rule 20 of C.P.C and taken notice through paper publication vide order dated 26.03.2017. Based on the same, Court proceeded to place him ex-parte. The main contention also urged before the Miscellaneous Court was that once the notice was returned with an endorsement he was not in station, at least he would have taken the notice by way of affixture and the same was not taken and proceeded to file an application under Order V Rule 20 of C.P.C. No proper service was made on the appellant and hence, called for interference of the Court.

4. The said Misc.Petition was resisted by the respondent herein by filing statement of objections contending that notice was issued and he avoided service of notice and hence, paper publication was taken under Order V Rule 20 of C.P.C and cannot found fault with the procedure adopted in placing him ex-parte. The trial Court having considered the grounds urged in Misc. Petition raised the following point for consideration:

"Whether the petition filed by the petitioner under Order 9 Rule 13 of CPC deserves to be allowed?"

5. The trial Court thereafter allowed the parties to lead evidence and petitioner examined himself as PW-1 and respondent is examined as RW-1 and petitioner got marked certified copies of judgment and decree in O.S.No.25432/2015. On the other hand respondent produced certified copy of the Misc. Petition No.25012/2022 and also certified copy of order sheet along with plaint in O.S.No.25432/2015.

6. The trial Court having considered the grounds which have been urged in the petition and also material placed on record comes to the conclusion that when the notice was issued, postman visited three times and he was not present on those days, hence the same was returned as 'party out of station' and taking into note Ex.P3 to 8 in O.S.No.25432/2015, initially Court has issued suit summons to the defendant and thereafter through RPAD, which was returned with shara "he is out of station" and hence invoked Order V Rule 20 and same was allowed and it was a proper service against the respondent and comes to the conclusion that Execution petition was also filed, wherein he has been served with same address and when such being the case, no ground is made out to allow the Misc. Petition.

7. The trial Court has also taken note of the contention of the petitioner herein that since he has pressed into service the Order V Rule 20 of C.P.C and considering the same comes to the conclusion that plaintiff has not taken steps for service of suit summons through affixture, but it was issued through Court and also through RPAD and defendant cannot be found