Substituted Service--Defendant had gone abroad but had not shifted his residence permanently--Defendant to be summoned under O.5 R.20 CPC and not under O.5 R.25 CPC.

Mr. Harinder Singh Sidhu, J.:- This petition has been filed impugning the order of the Ld.Civil Judge (Junior Division), Moga dated 29.4.2017, whereby, the application of the petitioner under Order 5 Rule 20 of the Code of Civil Procedure for summoning the respondent by way of substituted service has been dismissed.

2. The petitioner filed a suit for possession by way of specific performance of the agreement to sell dated 15.9.2007. The suit was contested by the respondent through his son Gursewak Singh as his general attorney. The respondent filed written statement refuting the claim of the petitioner. However, he did not lead any evidence. The suit was decreed vide judgment and decree dated 14.9.2015. After the expiry of the period of limitation for filing appeal, the petitioner filed execution application, in which notice was issued to the respondent for 16.2.2017. However, he could not be served and the process server reported that the respondent had gone abroad. Thereafter, the Ld. Executing Court vide order dated 16.02.2017 directed that notice be issued to the respondent under Order 5 Rule 25 CPC, which required the summons to be addressed to the respondent at the place outside India where he was residing. As the petitioner did not know the address of the respondent outside India where he could be served, but only knew his last known address, on which he was served in the suit and had put in appearance and filed written statement, the petitioner moved an application for permission to effect substituted service under Order 5 Rule 20 CPC. That application has been declined by the impugned order.

3. The Ld. Court held that where a defendant is residing out of India and has no agent in India empowered to accept service, then as per Order 5 Rule 25 the summons shall be addressed to the defendant at the place, where he is residing. It was held that as Order 5 Rule 25 CPC deals with the specific situation, where the defendant is residing outside India and does not have any agent in India, hence, service of the defendant-respondent, who was reported to have gone abroad, could be only effected in the manner prescribed in Order 5 Rule 25 and the general provisions of Order 5 Rule 20 CPC could not be resorted to.

I have heard Ld. Counsel for the petitioner.

Order 5 Rule 20 and Order 5 Rule 25 CPC read as under:

“20. Substituted service.- (1) Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy thereof 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 personally worked for gain, or in such other manner as the court thinks fit.

(1A) Where the court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.

(2) Effect of substituted service—Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally.

(3) Where service substituted, time for appearance to be fixed— Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require”.

25. Service on defendant resides out of India and has no agent.-Where the defendant reside out of India and has not agent in India empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him or by post or by such courier service as may be approved by the High Court, by fax message or by electronic mail service or by any other means