Mere knowledge of the pendency of the proceedings is no ground to proceed exparte against the respondent.

M.S.Liberhan, J.

1. Relevant facts for the decision of this revision petition are that the respondent (hereinafter referred to as the petitioner) got an exparte decree of ejectment against the petitioner (hereinafter referred to as the respondent) on 14.10.1978. The respondent applied for setting aside the exparte ejectment order on the grounds that he was not personally served and the petitioner got a substituted service effected in collusion with the process-server and the proceedings were kept concealed, as such there was no due service.

2. The petitioner controverted the said facts and contended that the respondent had a knowledge of the proceedings pending, inasmuch as the respondents mother was living in the same house in which the respondent was living, she had received the summons by registered post and in spite of that she did not appear either in her personal capacity or as guardian of the minors. The Court-guardian was appointed. The Court-guardian also informed her with respect to the pendency of the ejectment proceedings under postal certificate. In spite of that she did not appear. It was further contended that the application for setting aside the exparte ejectment order was barred by them.

3. The Rent Controller refused to set aside the exparte ejectment order and maintained that the respondent had the knowledge of pendency of the proceedings and did not appear intentionally as he did not possess sufficient amount to pay the arrears of rent and further found the application to be barred by time.

4. Learned counsel for the petitioner challenged the said findings. The material undisputed facts which emerge from the record as well as the oral evidence led by the parties are, that ejectment proceedings were taken out against the respondent on 26.2.1977. Order for effecting the substituted service by publication in newspaper was made on 14.9.1977 and notice was published in newspaper i.e. Hind Samachar, Jalandhar on 31.10.1977 notifying the date for appearance before the Rent Controller on 7.11.1977. The notice published does not carry in it the summary of allegations of any reference as to in what connection the respondent was required to appear before the Rent Controller on the said date.

5. Order 5 Rule 2 of Civil Procedure Code makes it incumbent on the Court to see that every summons is accompanied by a copy of the plaint or, if so permitted, by a concise statement. It is well settled that the provisions are mandatory. In the case of summons not accompanying the copy of the plaint or summary of concise statement of claim as ordered by the Court it shall be treated as a due service and exparte decree obtained on such defective service has to be set aside.

6. Order 5 Rule 20 of the Code envisages that the court can order the substituted service only on its being satisfied for the reasons to be disclosed in the order to believe that the defendant is keeping out of the way and avoiding service, or any other reason for ordering the service to be effected by publication. It shall further order that the summons were to be affixed with a copy of plaint thereof in some conspicuous place in the court house as well as on some conspicuous part of the house in which the defendant is known to have last resided or carried on business personally or worked for gain or in any other such manner as the Court thinks fit. Even while choosing the newspaper the Court has to keep in view the circulation of the newspaper in the locality. While ordering the substituted service Court shall fix a reasonable period for appearance after the service is effected.

7. The High Court Rules and Orders, Volume IV Chapter 7-B envisages that where the order has been passed effecting the service by substituted service, the Court shall intimate through a covering letter to the manager of the newspaper to send an intimation with respect to the publication to the Court as well as send under postal certificate copy of the paper containing the noti