The court's satisfaction that defendants are avoiding service or that ordinary service is not possible is a valid basis for ordering substituted service through publication under O. V, R. 20 of the Civil Procedure Code.

( 1 ) THIS petition is directed against the concurrent orders passed by the courts below rejecting an application filed by the petitioners husband Janaki Prasad and his two brothers Kanhaiyalal and Munnalal (respondents 4 and 5) under O. 9, R. 13 of the Code of Civil Procedure for setting aside an ex parte decree dated 13-5-1977 passed in a suit instituted by Chandrika Prasad the respondent 3 herein. Both the courts below have concurrently found that the summonses of the suit had been duly served on the three defendants, namely, Janki Prasad, Kanhaiyalal and Munnalal. The trial court rejected the application under O. 9, R. 3 on an additional ground, namely, that even if it be assumed that the service through publication was treated as irregular, the application is liable to be dismissed on the ground that despite the knowledge of the suit while the same was pending, the application for setting aside of the ex parte decree was filed seven months after the passing of the decree.

( 2 ) SRI R. N. Singh, learned counsel for the petitioner submitted that the courts below have committed a patent illegality in rejecting the defendants application under O. 9, R. 13 on the ground that they had been duly served through publication.

( 3 ) THE criticism of the learned counsel was that the courts below were wrong in treating the service of the summons of the suit through publication as sufficient and valid. Learned counsel contended that substituted service by way of publication in newspaper could be ordered by the court only if the court feels 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 reason the summonses cannot be served in the ordinary way. In the present case, learned counsel contended such a contingency did not exist.

( 4 ) THE argument is devoid of any merit. In order to examine this argument, I had asked the learned counsel for the petitioner to file certified copies of the order sheet and other papers relevant for this issue. Learned counsel did not file those papers. The same were, however, filed by the contesting plaintiff respondents. A perusal of the order sheet shows that on 9-10-1976 an application 12-D for issue of summons for publication in some local newpapers was filed by the plaintiff and the same was allowed by the Court. The order sheet of that date reads as follows :-"9-10-76 by plaintiff for issue of summons for 12-D publication in some local newspaper 15-D allowed. Let the publication be made in the paper next in the list. Steps within 10 days. Sd/illegible"

( 5 ) THE plaintiff took steps for publication in the newspaper called "sandesh" Azamgarh fixing 21-12-1976 for written statement and 1-1-1977 for issues. No written statement was, however, filed on that date. The case was then ordered to be put up on the next date. i. e. 31-1-1977. The order sheet of that date reads as follows : "defendants served through the publication in "sandesh" weekly. No. W. S. filed until now. Put up on 31-3-1977 for issue and disposal of map and report. Sd/- Illegible, m. M. "

( 6 ) ON 31-3-1977 the case was called out at 12. 30 P. M. The defendants were absent. The map filed by the plaintiff was confirmed and the case was ordered to proceed ex parte against all the three defendants. On the next date i. e. 31-5-1977 the suit was decreed ex parte. Thereupon the application under O. 9, R. 13 was filed by the three defendants, that is, Janaki Prasad, the husband of the petitioner and his two brothers, Kanhaiya Lal and Munnalal for setting aside the ex parte decree.

( 7 ) THE order for service through the publication was passed upon the applications Nos. 12-D and 15-D filed by the plaintiff. This Court is entitled to assume that those application must have contained the relevant averments based on which the plaintiff requested the Court to issue summons for publication. It is apparent that the Court must have been satisfied on the