Substituted service of summons through publication is only permissible when proper procedures are followed; failure to do so invalidates ex-parte judgments.

Judgment :

Sandeep Jain, J.

1. The instant appeal under Order 43 Rule 1(t) read with Section 104 CPC has been preferred by the defendant against the impugned order dated 23.5.2024 passed by Indu Dwivedi, Additional District Judge, Court No.6, Ghaziabad in Miscellaneous Case No. 71 of 2019 Subash Chand Gupta vs. Ajay Kumar Sharma and others whereby, the defendants application no.4-C under Order 41 Rule 21 CPC for recalling the ex-parte judgment in Civil Appeal no.146 of 2011, and to rehear the appeal on merits, has been rejected.

2. Appeal is admitted.

3. Factual matrix is that the plaintiff -respondents no. 1 to 3 filed O.S. no. 544 of 1997 against the defendant-appellant and co-defendant /respondent Phool Singh(died during pendency of suit) for the relief of permanent injunction and possession, which was dismissed on merits by Additional Civil Judge (Senior Division) Court No.2 Ghaziabad on 18.8.2011, which was challenged by the plaintiffs by filing Civil Appeal no. 146 of 2011 Ajay Kumar Sharma and others vs. Gangaram and others in the Court of District Judge, Ghaziabad, which was subsequently after admission, transferred to the Additional District Judge, Court no.6, Ghaziabad.

Relevant chronology of C.A. no.146 of 2011

4. Civil Appeal no.146 of 2011 was admitted for hearing on 16.9.2011 and thereafter, notices were issued on the respondents fixing 15.11.2011 for disposal of stay application and the appellants were directed to take steps within 7 days. On 28.11.2011 the appellants moved an application 17-C2 for effecting service of summons through registered post, alongwith application 19-C2 for effecting service through publication in newspaper, and the court fixed 30.11.2011 for disposal of the above applications. On 30.11.2011, the plaintiff-appellants submitted before the court that during the pendency of the suit the disputed property has been sold to the defendant-respondent no.4 Subash Chand Gupta, as such none is taking interest on behalf of respondents no.1 to 3 and respondent no. 4 was deliberately not appearing before the court whereas, he was aware of the appeal. It was further submitted that the respondent was in a hurry to sell the disputed property, because no injunction has been granted. On this ground, it was prayed by the appellants that they be permitted to effect service on respondents through publication, which was supported by an affidavit of appellant Ajay Kumar Sharma(paper no. 20-C).

5. The appellate court recorded a finding that previously also notices were sent on the respondents but service could not be effected on them, hence, in the interest of justice, the court on 30.11.2011 permitted the appellants to effect service through publication on their expenses, and to take steps within 4 days. The appellants application 19-C2 was accordingly disposed and the appellate court fixed 21.12.2011 for hearing.

6. The appellate court on 16.2.2012 recorded that the service on respondents was sufficient by publication in newspaper 21-C2, but none of them was present as such, the court proceeded ex-parte against the defendant/respondents and fixed 29.2.2012 for hearing ex-parte arguments of the plaintiff-appellants.

7. The appellate court on 19.4.2012 recorded that the acknowledgement due(AD) of the registered notices, which were sent to the respondents was not available on the record. Besides that, ther