JUDGMENT - (1) On the 14th August 1964 the petitioner-landlord filed an ejectment suit against the respondent-tenant in the Court of Small Causes at Bombay on the ground that the respondent was a defaulter in the payment of rent for more than six months. the summons of the suit was sent by registered post but it was returned by the post office as "unclaimed" The petitioner thereafter tried to serve the summons through the bailiff of the court but on two days when he went with the bailiff to the premises he found the premises locked and the service, therefore, could not be effected. On the 27th August 1964 he obtained an order from the court for substituted service, which directed the substituted service to be effected by pasting the summons on the premises and sending a copy thereof by registered post. Since the defendant did not appear even thereafter, an ex parte decree in favour of the plaintiff was passed on the 10th November 1964. The plaintiff executed the said ex parte decree and obtained possesseion of the property on the 16th December 1964 and within a day or two thereafter he let it out to another tenant. On the 19th December 1964 the respondent filed an application for setting aside the ex parte decree alleging that he was not property served with the summons of the suit and also had good and sufficient reasons to be absent on the day on which the suit was heard and the ex parte decree was passed. In the said application he also prayed for restoration of possession of which he was deprived in the execution of the ex parte decree. This application was rejected by the trial Court. The respondent thereafter preferred an appeal from the said order of the trial Court to the Appellate Bench of the Court of Small Causes. In the said appeal, the appellate Cout was pleased to take the view that the substituted service obtained by the petitioner did not conform with the provisions of Order 5 Rule 20 of the Civil Procedure Code and was, therefore, not good and sufficient service. the appellate court also held that even otherwise the appellant had good and sufficient reason to be absent on the day of the hearing of the suit. It, therefore, set aside the order passed by the trial court refusing to ser aside the ex parte decree, granted the application of the respondent for the setting aside of the ex parte decree and remanded the case back to the trial court for hearing and disposal according to law. It also granted that prayer for the restoration of possession and directed that possession of the premises should be restored to the appellant within a week from its order. Against the said decision, the present Civil Revision Application has been preferred by the plaintiff-landlord.

(2) The learned advocate, who appears for the petitioner, has argued that in the first place the view taken by the appellate court that the service is not in conformity with the provisions of Order 5 Rule 20 is not correct. In the second place, the appellate cout had no power to consider whether the order for substituted service was made on sufficient grounds or not and thirdly, the appellate court was wrong in taking the view that the appellant had good and sufficient reason to be absent on the day of the hearing of the suit. Apart from these contentions, the learned advocate has also raised a point of jurisdiction, which goes to the root of the matter and that is, the appeal to the appellate court was not competent and consequently the order passed in the appeal is without jurisdiction and null and avoid.

(3) Now, the substituted service under Order 5 Rule 20 of the Civil Procedure Code is normally effected by affixing a copy of the summons 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 worked for gain. The provison of Order 5 Rule 20, however has provided that the court may order the substituted service to be effected in

Click Here to Read the rest of this document