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1983 Supreme(Cal) 231
High Court Of Calcutta
Anil Kumar Sen, S. N. Sanyal
TEHAROONCHAND - Appellant
Versus
SURAJMULL NAGARMULL - Respondent
Civil Order 279 Of 1983
Decided On : 08/23/1983
S.P.ROYCHOWDHURY, Shyamal Kumar Mukherjee, SUBHAS BANERJI
Substituted service of summons under Order 5, Rule 20 of the CPC is valid only when the court is satisfied that the defendant is avoiding service or that summons cannot be served in the ordinary way.
Headnote:
SERVICE OF SUMMONS - ORDER 5, RULE 20 OF THE CODE OF CIVIL PROCEDURE (CPC) - ORDER 9, RULE 13 OF THE CPC - INTERPRETATION OF PROVISIONS - VALIDITY OF SUBSTITUTED SERVICE - LIMITATION FOR SETTING ASIDE EX PARTE DECREE - APPLICABILITY OF SECTION 151 OF THE CPC - MATERIAL IRREGULARITY IN THE EXERCISE OF JURISDICTION.
Fact of the Case:
Petitioner's application to set aside an ex parte decree was dismissed by the trial court and appellate court, prompting the petitioner to file a revisional application. The petitioner challenged the validity of the substituted service of summons under Order 5, Rule 20 of the CPC and argued that the application was not barred by limitation.
Finding of the Court:
The court held that the substituted service of summons under Order 5, Rule 20 of the CPC was not valid as the trial court failed to exercise jurisdiction properly and did not consider the necessary factors before issuing the summons. The court also found that the petitioner did not have knowledge of the ex parte decree until February 12, 1981, and therefore the application was not barred by limitation.
Issues: 1. Whether the substituted service of summons under Order 5, Rule 20 of the CPC was valid? 2. Whether the application to set aside the ex parte decree was barred by limitation?
Ratio Decidendi: 1. The court interpreted Order 5, Rule 20 of the CPC and held that the trial court must be satisfied that the defendant is avoiding service or that summons cannot be served in the ordinary way before issuing summons under this rule. Mere assertion of the plaintiff is not enough. 2. The court interpreted Section 151 of the CPC and held that the petitioner had sufficient cause to set aside the ex parte decree as he did not have knowledge of the decree until February 12, 1981.
Final Decision: The revisional application was allowed, the impugned orders of the lower courts were set aside, and the petitioner's application to set aside the ex parte decree was allowed. The ex parte decree was set aside, and the suit was restored to the file.
( 1 ) PETITIONER Teh-roonchand's application (Misc. Case No. 17 of 1981) under Order 9, Rule 13 of the Civil P. C. (hereinafter referred to as the 'code') for setting aside the ex parte decree in Title Suit No. 264 of 1978 was dismissed by the learned Munsif, 2nd Court, Alipore on Aug. 31, 1982, The appeal (Misc. Appeal No. 545 of 1982) pre-ferred by the petitioner was dismissed by the learned Additional District Judge, 4th Court, Alipore on Feb. 12, 1983. Being aggrieved, the petitioner has preferred the present revisional application.
( 2 ) THE opposite party Messrs. Surajmull Nagarmull as plaintiff filed Title Suit No. 264 of 1978 for eviction of the petitioner. The said suit was decreed ex parte on Mar. 25, 1980. On Feb. 13, 1981 petitioner filed an application under Order 9, Rule 13 read with Section 151 of the Code alleging that no summons had been served upon him. He came to know of the ex parte decree on Feb. 12, 1981. Petitioner prayed for setting aside the decree. In the written objection the opposite party contended that summons had been duly served on the petitioner and as the petitioner failed to appear the ex parte decree was passed against him. The opposite party further contended that the petitioner resisted the Court bailiff when the latter went to deliver possession on June 17. 1980. As such the petitioner was at least aware of the ex parte decree from the said date. The application was barred by limitations.
( 3 ) THE learned Munsif held that summons was served upon the petitioner and he had failed to prove that he was prevented by sufficient cause from appearing when the suit was called on for hearing. The appiica ion was also barred by limitation. On appeal, the learned Additional District Judge found that the petitioner came to know of the ex parte decree on June 17, 1980 and the application was consequently barred by limitation.
( 4 ) PETITIONER has challenged the said decision in the present revisional application. The revisional application is being heard on contest after notice to the opposite party.
( 5 ) MR. B. N. Sen, learned counsel for the petitioner, has argued that the records would show that there was no service of summons. The Court was not satisfied with the service by ordinary process and also through registered post. The plaintiff-opposite party was asked to take steps for better service. In the circumstance the substituted service under Order 5, Rule 20 of the Code on the prayer of the plaintiff cannot be considered to be service in accordance with law as no ground existed for invoking the provisions of Order 5, Rule 20 of the Code. It has been further contended by Mr. Sen that the evidence regarding the attempt of the bailiff to deliver possession on June 17, 1980 and the alleged resistance by the petitioner cannot be relied upon in view of material discrepancies. The finding that the petitioner became aware of the decree On June 17, 1980 is not supported by the evidence on record. According to Mr. Sen, there was no reason, in the circumstances of the present case, why the petitioner would not come to court earlier had he been aware of the decree. The petitioner camp to know of the decree on Feb. 12, 1981 and immediately rushed to court and filed the application on Feb. 13, 1981.
( 6 ) MR. Roy Chowdhury, learned counsel for the opposite parly, has submitted that the petitioner was avoiding the service of summons and recourse had to be had under Order 5, Rule 20 of the Code for service. Mr. Roy Chowdhury contends that under the law substituted service is as effectual as personal service and as such service of summons under Order 5, Rule 20 of the Code was valid. It has been further argued that there is clear finding of the fact that the petitioner resisted the execution of the decree on June 17, 1980 and he thus came to know of the ex parte decree on that date. The application was clearly beyond time. The only object of the petitioner is to delay the execution of th
