The Court emphasized the importance of due consideration in ordering substituted service and the need for clear knowledge of the particular decree sought to be set aside.

JUDGMENT :

Anil Kshetarpal, J.

1. The petitioners herein were defendants in a suit for grant of decree of declaration that the plaintiff is the absolute owner by way of adverse possession of the suit land in which was decreed ex parte.

2. Through this revision petition, the petitioners assail the correctness of order passed by the trial Court which has been affirmed by the First Appellate Court while dismissing an application under IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) to set aside the above noted ex parte decree.

3. In order to comprehend the issue which arises for adjudication, it is important to take note of the brief facts.

4. It may be noted that two similar suits were filed by the respondents against the petitioners on the identical grounds. One of the said suits was contested by the petitioners and it was dismissed on merits. The aforesaid decree was upheld by the High Court in Regular Second Appeal and now it has become final. Another similar suit i.e. CS No.45-C dated 16.01.2004 filed with respect to another plots between the same parties with similar assertions was decreed ex parte, on 07.06.2005.

5. On the presentation of the plaint, the trial Court passed the following orders on the various dates of hearing:-

“Office to report.

C.J. (Jr. D)/16-1-04

Sir,

The court fee is correct.

Reader to C.J. (Jr. D)/16-1-04

Present: Sh. C.S. Mehta, Adv. For plaintiff(s)

Office report perused. Suit received by assignment. It be checked and registered. Notice of the suit as well as stay application be given to defendant(s) for 22-1-04 on filing of PF and copy of plaint etc. Dast be given.

C.J. (Jr. D)/16-1-04

Present:- As above.

Summons of defendants received unserved. Adjournment requested. Fresh be issued for 1.3.2004 on filing of PF etc.

C.J.(JD)/22.1.04

Present:- As above.

Summons to defendants received unserved for want of correct address. Adjournment requested. Now defendants be again summons for 13.5.04 on filing of PF etc.

C.J.(JD)/1.3.04

Present:- Sh. C.S. Mehta, Adv. for plaintiff.

Summons to defendants received unserved for want of correct address. Adjournment requested. Now the case is adjourned to 29.5.2004 for summoning of defendants by filing fresh PF and complete address.

C.J.(JD)/13.5.04.

Present:- Sh. C.S. Mehta, Adv. for plaintiff.

Case file put up today on the application moved on behalf of plaintiff for substitute service of defendants. Counsel for plaintiff Sh. C.S. Mehta, Adv. submitted that several summons including registered A.D. were issued to the defendants but each time it has been reported by the serving agency that defendants are not residing on the given address. Hence, counsel for plaintiff further argued that as defendants cannot be served in ordinary way therefore, they may be allowed to served through proclamation by bead of drum. After going through the case file and postal receipt this court reached at a considered opinion that defendants cannot be served in ordinary way. Hence, in the interest of justice, now defendants be served by way of Munadi for 29.5.2004 by filing munadi fee etc.

C.J.(JD)/13.5.04.

Present:- As above.

Munadi against defendants not received back. Adjournment requested. Now defendants be again summoned by way of Munadi of filing Munadi fee etc. for 29.5.04.

C.J.(JD)/29.5.04.

Present:- Sh. C.S. Mehta, Advocate for plaintiff.

Munadi against defendants not issued for want of munadi fee etc. Now munadi fee be filed within seven days, to come up on 10.6.04.

C.J.(JD)/29.5.04

Present:- As above.

Defendants served through munadi but not present despite repeated several calls since morning. It is now 12:30 P.M. Waited sufficiently. Hence defendants are hereby proceeded against ex parte. To come up on 7.8.04 for ex parte evidence.

C.J.(JD)/10.6.04”

6. The petitioners (the defendants in the suit) filed an application under Order IX Rule 13 of the CPC to set aside the ex parte decree along with a separate application for the condonation of delay in filing the application under