The court must record its satisfaction that there are reasons to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reasons the summons cannot be served in the ordinary way before ordering substituted service under Order 5, Rule 20 (1) of the C. P. C.

( 1 ) BEING aggrieved by the order dated 15-4-1994 passed in M. J. C. No. 8/90 by the learned Third Additional District Judge, Durg, rejecting the appellant's application filed under Order 9, Rule 13, C. P. C. , the appellant has preferred this appeal under the provisions of Order 43, Rule 1, C. P. C.

( 2 ) THE appellant moved an application before the trial Court under Order 9, Rule 13, C. P. C. inter alia pleading that the summons of the suit were not served upon him as he did not subscribe to daily newspaper 'desh Bandhu', he had no knowledge that he was said to be served by substituted service, and as he had no knowledge about the pendency of the proceedings, the ex parte decree passed against him deserved to be set aside. The application was contested on merits. The appellant in support of his case examined his ownself and also examined one Amrit Pratap Das. The witnesses stated that it was Amrit Pratap Das who informed the plaintiff about passing of the ex parte decree. After recording the evidence and hearing the parties, the learned trial Court found that there was no sufficient cause in favour of the defendant to remain absent when the suit was called on for hearing, in view of the finding it rejected the application for setting aside ex parte decree.

( 3 ) SHRI Agrawal, learned counsel for the appellant, contends that the order dated 19-4-1989, according to the plaintiff's application in the suit was patently illegal and was contrary to the provisions of Order 5, Rule 20, C. P. C. He submits that the Court without recording its satisfaction and even without directing affixture of the summons in some conspicuous place in the Court-house, proceeded ex parte. According to him as the Court did not record its satisfaction for applying Order 5, Rule 20, C. P. C. the proceedings were vitiated and the decree deserves to be set aside. On the other hand, Shri Bhargava, learned counsel for the respondent-plaintiff submits that the trial Court having found that the summons were issued thrice, returned unserved with the endorsement that the address was incomplete was of the opinion that in view of the admission made by the defendant that the address given in the summons was the same where he resided or carried on business, was justified in ordering substituted service. He submits that there were no good cause shown or assigned by the defendant for setting aside the ex parte decree, therefore, the trial Court was justified in rejecting the application. I have heard the parties at length.

( 4 ) ORDER 5, Rule 20 (1) provides that 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 on the house where the defendant is known to have last resided. Sub-rule 1 (A) provides that where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, it has to be a daily newspaper circulated in the locality in which the defendant is last known to have actually and voluntarily resided.

( 5 ) THE provisions are two fold. According to sub-rule (1) the Court has to record its satisfaction that there were reasons to believe that the defendant was keeping out of the way for the purpose of avoiding service or in the alternative, the Court is required to record its satisfaction that for any other reasons the summons could not be served in the ordinary way. Proceedings dated 19-4-1989 recorded in the suit only read that the plaintiff moved an application under Order 5, Rule 20, C. P. C. with an affidavit for effecting service by publication. The Court without recording its satisfaction allowed the application. It also directed that the summons be published in daily newspaper 'desh Bandhu'. The Court below has failed to record