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1977 DIGILAW 578 (MP)

Bhikamsingh v. Amarlal

1977-11-23

P.D.MULYE

body1977
Short Note : 1. Non-applicants Nos. 1 and 2 filed a suit for eviction and recovery of arrears of rent against the applicants and obtained an ex-parte decree on 3.3.1976. Thereafter an application under Order 9, Rule 15 CPC, for setting aside the ex-parte decree was filed on 6.3.1976 on the ground that the suit-summons was not validly served on them. Both the Courts below dismissed the application. It was contended on behalf of the applicants that the service of summons by substituted service in the present case was uncalled for and illegal. 2. Order 5, Rule 20 CPC, provides for substituted service. It enables the Court where it 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 to order the summons to be served by affixing a copy thereof in some conspicuous place in the Court house and also upon some conspicuous part of the house, if any in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. Service of this mode is as effectual as if it had been made on the defendant personally. Thus, if substituted service is resorted to, all conditions mentioned in the procedure set out in Order 5, Rule 20 CPC must be fulfilled. It is not service in the ordinary sense of the word. It is service in an artificial sense proceeding upon a fiction imported by necessity. A special mode of procedure has been prescribed and it is incumbent for the purpose of effecting such service that the entire procedure specifically mentioned in rule should receive full compliance. In the present case, admittedly, no such copy of the summons was affixed in some conspicuous place in the Court house and unless this is done it cannot be said that substituted service has been effected. Johrilal vs. Commissioner of Income Tax U.P. AIR 1967 All. 170 relied on. Revision allowed.