Substituted service of summons via publication is invalid without exhausting regular service methods under CPC.

1.Is service of summons through publication in a daily newspaper without exhausting other modes envisaged in O.5, CPC is permitted; Is the question arising for consideration in this revision.

2. The brief facts of the case may thus be stated that plaintiff J and K Bank filed a suit for recovery of Rs. 385692.15 against the defendants in the High Court. In the absence of the parties this Court by the order dt. 2-8-1995 transferred the suit for disposal under law to the Court of Ld. District Judge Bank cases. Srinagar with a direction that it "shall issue notices to the parties before proceeding further in the case."

3. Ld. trial Court pursuant to the order of this Court by its interim order dated 5-3-1996 ordered for issuance of the notices to the parties through 'Do parat' summons. The counsel for the plaintiff appeared but the defendants could not be served so the same direction was repeated by the Ld. trial Court in its two more interim orders but the service could not be effected and unserved summons came to be returned with the report of the process server that Naid Duri Nowshera was a very big area so despite intensive search he could not locate the defendants. On this instead of furnishing fresh particulars and complete address of the defendants the plaintiff moved an application for service of the defendants through publication alleging that defendants were avoiding service on them.

4. Ld. trial Court allowed the application of the plaintiff and directed the service through publication in the Newspaper after observing as follows :
"The report of the process server is that the defendants were searched but they were not found despite their best efforts. The defendants have been issued registered notices also, but instead of this they did not present themselves before the Court. It appears that the defendants are deliberately avoiding the service and that their services cannot be obtained in the ordinary course."

5. I may mention here that there is nothing available on record to indicate that summons were ever sent by registered post. The defendants did not appear despite publication, so they were set ex parte and consequently ex parte decree was passed on 30-4-98 by the trial Court. The defendants / petitioners moved the trial Court for setting aside ex parte decree on 12-11-1998 and for condoning the delay on the grounds that till 10-11-1998 they did not have any knowledge of the decree; that after the transfer of the case they have not been served with any summons; that defendant No. 3 had expired on 11-11-89 so the notice through publication to him was not proper, that the service by substituted service was not proper.

6. Ld. trial Court rejected the prayer of the defendants holding that the defendants had the knowledge of the pendency of suit as "defendants 1 and 4 had been appearing in High Court through counsel as is borne out by the order of the Hon'ble High Court passed on 4-3-91", therefore his case fell within the ambit of 2nd proviso to O.9, R.13 and therefore, even if there was any irregularity in the service of summons it was only an irregularity so could not affect the validity of service.

7. Before adverting to the question whether knowledge of pendency of the suit as envisaged by 2nd proviso to O.9, R.13 was imputable to the petitioner / defendant let us first examine whether service by publication was permissible without exhausting the other modes of service?

8. Order V provides for the procedure and the mode in which summons in a suit are to be served. Under R.10 the summon is required to be served by delivering or tenderin