The main legal point established is that the trial court must ensure proper service of summons and comply with the legal requirements for substituted service.

JUDGMENT

Kalyan Rai Surana, J. - Heard Mr. K.K. Nandi, learned counsel for the petitioners and Ms. A. Chakraborty, learned counsel for the respondent.

2. The legality of the order dated 17.09.2019, passed by the learned Civil Judge, Bongaigaon in T.S. No. 76/2018, thereby rejecting petition no. 1517/19 under Order IX Rule 7 read with Section 151 CPC, and refusing to set aside order dated 29.04.2019 to proceed ex parte against the petitioners is in challenge in this application filed under Article 227 of the Constitution of India.

3. Referring to the documents annexed to this application, the learned counsel for the petitioners has submitted that the manner in which order was passed to proceed ex parte against the petitioners is not sustainable.

4. Per contra, the learned counsel for the respondent has referred to the statements made in the petition no. 1517/19 filed by the petitioners under Order IX Rule 7 read with Section 151 CPC, it is submitted that the petitioner no.2 had clearly admitted that the address given in the summons was their address, as such, no infirmity or jurisdictional error was committed by the learned trial Court by rejecting the said petition.

5. At the outset, it would be relevant to refer to the date-wise orders passed by the learned trial Court. By order dated 12.10.2018, the suit filed by the respondent was registered and direction was issued by the learned trial Court to the respondent to take steps, fixing the next date on 22.11.2018. On 22.11.2018, the Court took note of the service report on the petitioners- defendants in the connected misc. case and directed the respondent to provide proper and correct address of the petitioners and the next date of the suit was fixed on 21.12.2018 for address of the petitioners. However, it appears that the case records were put up before the learned trial Court on 19.12.2018 and on the said date, the respondent was allowed to serve summons on the petitioners in a substituted manner and the respondent was directed to take steps in terms of Rule 20A of Order V of CPC. While retaining the date of 21.12.2018, the suit was fixed on 24.01.2019 for service report. As per order dated 21.12.2018 and 24.01.2019, the learned Judge was on transfer and that by filing petition no. 112/19 dated 24.01.2019, the respondent took time for taking steps and the next date of the suit was fixed on 26.02.2019 for passing necessary orders. As per order dated 26.02.2019, the learned trial Court directed the respondent to serve summons in a substituted manner and the next date of the suit was fixed on 30.03.2019. As per order dated 30.03.2019, the respondent produced a copy of local vernacular daily dated 12.03.2019, where the summons was published. However, the learned trial Court did not accept it as duly served because the address of the petitioners was at Guwahati, whereas the newspaper was of Bongaigaon edition. Therefore, the respondent was directed to make an endeavour to produce the Guwahati edition of the said newspaper, fixing 29.04.2019 for production of newspaper. As per order dated 29.04.2019, Guwahati edition of newspaper published on 12.03.2019 was produced before the learned trial Court. By referring to the provisions of Order V Rule 9 CPC read with Section 27 of the General Clauses Act, the learned trial Court deemed due service of summons on the petitioners and ordered the suit to proceed ex parte against the petitioners and the next date of the suit was fixed on 29.05.2019. On 29.05.2019, the respondent had submitted his evidence- on- affidavit as PW-1 and the next date was fixed on 19.06.2019 for ex parte argument. On 19.06.2019, the petitioners had appeared and filed the said petition no. 1517/2019 to vacate the order to proceed ex parte against them. Moreover, the learned counsel for the respondent is right in pointing out that in the said petition no. 1517/19 dated 19.06.2019, the petitioner no.2 had admitted that the address given in the cause title was their address.