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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Ajay Mohan Goel, J.
Smt. Vijaya Shakti Gupta – Petitioner
Versus
Shri Rakesh Khanna – Respondent
CMP No. 1227 of 2017 in CMPMO No. 344 of 2014
Decided On : 16-03-2017
Service of Notice - Ex-parte Judgment - Code of Civil Procedure - Order 5 Rule 20, Section 151 CPC
Fact of the Case:
The respondent sought to set aside an ex-parte judgment, claiming that proper notice was not served upon him. The court reviewed the records and found that despite multiple attempts, the respondent could not be served at his known addresses. Substituted service through newspaper publication was ordered, and the respondent failed to appear in court despite the publication of notices.
Finding of the Court:
The court dismissed the respondent's claim, stating that the publication of notices in newspapers constituted effective service, and the respondent's failure to appear did not invalidate the service.
Issues: The main issue was whether the substituted service through newspaper publication constituted valid notice to the respondent.
Ratio Decidendi: The court held that when notices are published in a newspaper and the court is satisfied that the petitioner made best efforts to serve the respondent, the presumption is that the respondent was duly served.
Final Decision: The court dismissed the respondent's application, finding it devoid of merit.
Ajay Mohan Goel, J.
CMP (M) No. 139 of 2017
Application allowed. Delay condoned.
CMP No. 1227 of 2017
1. By way of this application, applicant/respondent has prayed for setting aside ex-parte judgment passed by this Court on 19.10.2016 on the ground that the judgment has been passed by this Court without issuance of any notice to the applicant/ respondent and without effecting any proper service upon him.
2. I have heard learned counsel for the parties and also gone through the records of this case to satisfy myself as to whether respondent was duly served in the case or not.
3. As per records of the case, the CMPMO was admitted on 22.09.2015, on which date, the respondent was proceeded against ex-parte as service was complete but there was no representation on behalf of the respondent.
4. Records demonstrate that notices were issued to applicant/respondent on 31st October, 2014 and 12.11.2014 but as he could not be served for want of correct address, accordingly, on 09.12.2014 this Court ordered filing of fresh process fee and correct address. Thereafter, as per the records, notice issued to the respondent for his appearance in the Court on 25.03.2015 was received back with the report that the respondent was not available at the given address and on inquiry, it was informed that respondent had left the said address since long. The address on which said notices were issued is quoted herein-below:
“Rakesh Khanna S/o Sh. Romesh Kumar Kahanna
R/o NL-130, Mohalla Mohindru,
Jalandhar City, Punjab.”
5. Records also demonstrate that notices were issued to the respondent on 6th of April, 2015 for his appearance in the Court on 13th May, 2015 on the following address:
“Rakesh Khanna S/o Sh. Romesh Kumar Kahanna R/o Wispering Winds Resort (Khaniyara Road), Mohal Kasol, Mauja Khanyara, Tehsil Dharamshala, District Kangra- 176215.”
6. As per records, this notice was also received back with the report that respondent was not found on the address given and he was stated to be out of station. Thereafter, again notices were issued to the respondent on 08.07.2015 for his appearance in the Court on 7th August, 2015 on both his addresses mentioned above. The respondent was again not served as he was not found on the given addresses. Thereafter, an application i.e. CMP No. 6620 of 2015 was filed by the petitioner under Order 5 Rule 20 of the Code of Civil Procedure for substituted service of the respondent, on which following order was passed:
“20.06.2015
Present: Ms. Ranjana Chauhan, vice counsel for the petitioner.
CMP No. 6620 of 2015 has been moved under Order 5 Rule 20 read with section 151 CPC for the service of respondent Sh. Rakesh Khana by way of substituted mode. It is stated in the application that the said respondent is not being served through ordinary mode of service as he is intentionally keeping himself away and avoiding the service. The application is supported by an affidavit. It is clear from the perusal of the record that the aforesaid respondent is not being served for one reason or the other despite attempts having already been made thrice in this regard. Therefore, the application is allowed, as requested for. Respondent Sh. Rakesh Khana, be served through ordinary process as also through registered AD post. The said respondent be also served by way of publication in the daily newspaper “Amar Ujala” having wide circulation in the area where the respondent is residing/last resided/concerned area. Steps, i.e. publication charges, RAD covers, process fee etc. be taken within two weeks. Notices for the aforesaid purpose be made returnable on 07.08.2015.
Additional Registrar.”
7. Thereafter notices were published in vernacular Newspaper “Amar Ujala” Jalandhar Edition, (Punjab) dated 30th July, 2015 and vernacular Newspaper “Amar Ujala” Dharamshala Edition, (Himachal Pradesh) Edition dated 30th July, 2015, in which notices respondent was called upon to appear before the Court either in person or through an authorized agent, however, even
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