1986 Supreme(MP) 544

IN THE HIGH COURT OF MADHYA PRADESH
P.C. PATHAK, J.
Jagdish Singh Sodhi – Appellant
Vs.
Mukund Kumar – Respondent
Misc. A. No. 53 of 1986 (I)
Decided on : 25-07-1986.

Headnote:(1) Civil Procedure Code, 1908 – O.5, R.17 – copy of summons not affixed on house – service not affected.

       (2) Civil Procedure Code, 1908 – O.5, R.20 – satisfaction as to avoidance of service not recorded – circulation of newspaper not proved in the locality concerned – service is not proper.

       (3) Civil Procedure Code, 1908 – O.5, R.20 – service under – is in addition to service by affixture and not substitution thereof.

        Short Note

       1. On 17 – 1 – 1984 the appellant filed an application under O.9, R.13, CPC for setting aside the ex – parte decree on the grounds that no summons was ever served on him and that he did not come across of 'Swadesh' News paper dated 30 – 9 – 1983. Therefore the ex – parte decree passed against him is illegal. He came to know about the ex – parte decree only on 13 – 1 – 1984 when at about 3/4 p.m. certain employees of the Court accompanied by police force and 10/12 Hammals came to the suit premises and showed warrant of possession and delivered the possession of the suit house.

       2. The respondent opposed the application and submitted that the ex – parte decree was rightly passed after due service of summons on the defendant – appellant.

       3. After recording evidence of both parties the trial Court rejected the application of the defendant. Hence the present appeal.

       4. Held: The only question to be examined in this appeal is whether the appellant was duly served with the summons of the suit. It was not disputed before me that the summons was never served personally on the defendant – appellant. At this stage it will be relevant to mention the provisions of O.5, R.17 C.P.C. This rule permits affixture of the summons on the house in the event of non – availability of the defendant and there is no other person on whom the service can be made or the defendant refuses to accept the service. In order that the process server should conclude that the defendant is absent and cannot be found, the rule requires that the serving officer must use all due and reasonable diligence to trace out the defendant who is absent from his residence. The summons contains the only endorsement that when he visited the house on 19 – 7 – 1983 he found the house locked and no one came there. On enquiry he learnt that the defendant's office has been shifted to Transport Nagar. This summons bears 14 – 7 – 1983 as the date of the issue. From this endorsement it is not clear that the process server used all due and reasonable diligence. In order to justify service, it must be shown that proper efforts were made to find out the defendant i.e. that the serving officer went to the place and at times where and when it was reasonable to expect to find him. Even after amendment the requirement of reasonable efforts by the process server has not been deleted. There is also no report to the effect that he could not find out any other agent to accept the service of the summons. Assuming the report of the process server is correct the rule required him to affix the copy of the summons on the door or some conspicuous part of the house. There is no report to that effect. I, therefore hold that the process server failed to effect service on the defendant as provided under rule 17 of O.5, C.P.C.

       5. The plaintiff then invoked the provisions of O.5, rule 20 CPC by moving an application to that effect. The application states that the ordinary summons as also the one sent through registered post A.D. has returned unserved with the remark that the defendant is not available and the office remains locked the application further states that the summons cannot be served through ordinary process since the defendant knowingly is avoiding service. Therefore the defendant should be served by affixture or by publication in a local News Paper of Indore. In order to exercise the powers under this rule the Court must record his satisfaction that he is satisfied that there is reason to believe that the defendant is keeping out of the way for avoiding service, or that for any other reason the summons cannot be served in the ordinary way. After such recording of his satisfaction, the Court should order the summons to be served by affixture in some place in the Court house and also upon some conspicuous part of the house in which the defendant is known to have carried on business or personally worked for grain. Sub – rule 1 (A) provides that 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 carried on busineS. In this connection I may also refer to a decision reported in Ramjiwan v. Hardwarilal (1959 N.L.J. short note 26) wherein Mudholkar, J. as he then was held as under:

       "The Court must issue a summons in the ordinary way and can resort to provisions of Order 5, rule 20, Civil Procedure Code only when it is satisfied that service cannot be effected in the ordinary way. The Court must also record its satisfaction and the reasons for ordering issue of substituted service some where, either on the application of the order – sheet".

       6. I have already found that the trial Court without recording his satisfaction in a routine manner ordered service of summons by publication in the Newspaper. There is no direction by the Court for affixture of the summons on the Court house, as also the defendant is known to have last worked for gain. The provisions of publication through Newspaper is in addition to the modes of service by affixture at place mentioned above and not in substitution thereof.

       7. The appellant has proved that at the relevant time he was residing in Gwalior. However, his employees continued working at 3 – 9, Jawahar Marg, Indore and 188 Transport Nagar, Indore. He also stated that his clerk regularly sits in the office at Jawahar Marg. It was on 13 – 1 – 1984 when he received a telephonic message by lightening call at Gwalior about the execution of warrant in the manner stated above. He denied any knowledge of publication of summons in 'Swadesh' newspaper. His statement is corroborated by Gouridatta Joshi and Harpalsingh – P.Ws.2 and 3. As against this the respondent entered into the witness box to prove his case. He has no where stated that the newspaper in which the summons was published had the circulation at the place where the summons was sought to be served on the defendant.

       8. The respondent also examined the process server Rabin Khan (D.W. 2). In cross examination he stated that he went to effect the service of summons on 19 – 7 – 83 and he made the endorsement after making enquiry in the neighbourhood. He found the defendant's office locked. He could not tell the name of the person from whom he made the enquiry.

       9. In the state of evidence briefly referred to above and the requirement of law there is no escape from conclusion that the defendant was not validly served. The approach of the trial Court by solely relying on the deemed service under O.5, rule 20 (3) of CPC is not correct. The defendant has satisfactorily established that there was no service of summons much less due service on him. 1959 NLJ SN 26 relied on.

       Appeal allowed.