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1982 DIGILAW 897 (ALL)

Jhaul Devi v. Bechoo

1982-08-06

R.S.VERMA

body1982
JUDGMENT R.S. Verma, M. - The background of this revision is as follows:- Bechoo has filed a suit under Section 229-B/209 of the U.P. Zamindari Abolition and Land Reforms Act against Smt. Jhaul Devi and others. Smt. Jhand Devi was recorded in Shikmi column along with Smt. Shanti Devi in the copy of Khatauni of 1380 Fasli. There was no personal service on Smt. Jhaul Devi and Smt. Shanti Devi and hence it was ordered that substituted service be made by publication of summons in a newspaper. This summons was published on December 22, 1980 in a newspaper "Hindu Keshari", a local weekly paper of Mirzapur. The trial court considered this service as sufficient and when the defendants did not appear in the case it proceeded ex-parte and passed an ex-parte decree on March 18, 1974. On March 25, 1974, Smt. Jhaul Devi, defendant filed an application for setting aside the ex-parte decree on the ground that she was a pardanashm lady and that she never came across the publication of the summons in 'Hindi Keshari' which was not circulated in the area in which she lived. The trial court did not agree with this contention and it dismissed the application of Smt. Jhaul Devi on October 16, 1974. She filed in appeal against that order, but the learned Additional Commissioner was also of the view that there was no force in the appeal of Smt. Jhaul Devi and that she must have got notice of the suit against her, Smt. Jhaul Devi had filed this revision against the orders of the learned courts below:- 2. The main question to be decided in this case is whether Smt. Jhaul Devi had knowledge of the suit and can it be considered that she was property served in the suit against her. It is admitted that n personal service of summons was mad on her and that she also did not refuse to take the summons. The summons was also not affixed on a conspicuous part of her house. The only manner in which she was served was according to Rule 20(1-A) of Order V, Code of Civil Procedure. It is admitted that n personal service of summons was mad on her and that she also did not refuse to take the summons. The summons was also not affixed on a conspicuous part of her house. The only manner in which she was served was according to Rule 20(1-A) of Order V, Code of Civil Procedure. For a valid substituted service under Oder V. Rule 20(1-A) C.P.C., two conditions must be fulfilled - (i) the newspaper in which the summons is published must be a daily newspaper and (ii) the newspaper must be circulated in the locality in which the defendant resides. In this case, both these conditions were not fulfilled. As far as conditions were not fulfilled. As far as condition No. 1 is concerned, it has been proved that summons was not published in a daily newspaper, but was published in a weekly newspaper published on every Saturday. A perusal of the newspaper itself shows that it is not a daily newspaper. Thus the main important condition for substituted service is missing in this case. As regards the second condition, i.e., the newspaper having circulation in the locality concerned, the evidence is not so categorical, but nonetheless the very nature of the newspaper shows that it could not have much circulation in the district. It is one of those newspapers which are published by some ambitious persons in every district and which depend for their publication on some advertisement and mostly on publishing court notices. The result is that by not fulfilling the conditions, referred to in Order V, Rule 20 (1-A) of the Civil Procedure Code, the service was not legal and could not be deemed to be effective service on the defendant. This publication will not be treated as a substituted service at all and hence the further proceedings in the trial court was illegal and that the trial court should have adopted a more effective legal manner of service of summons on the defendant. In absence of it, the ex-parte order decree are a nullity. They deserve to be set aside. 3. By ignoring this aspect of the matter, the learned courts below committed a grave illegality in deciding the case. Publication of summons is not a ritual to be observed by a party or a trial court in disregard of the provisions of law regarding service. They deserve to be set aside. 3. By ignoring this aspect of the matter, the learned courts below committed a grave illegality in deciding the case. Publication of summons is not a ritual to be observed by a party or a trial court in disregard of the provisions of law regarding service. It is unfortunately true that many of the trial courts do not discharge their duties in cases in which substituted service under Order V. Rule 20(1-A) of the Code of Civil Procedure is to be made. They do not apply their minds at all do not give any direction ordinary or mentioning the newspaper in which the publication is to be made. If publication is made at all, the trial courts do not see whether the publication was made in a daily newspaper as in mandatory and whether it has circulation in the area where the defendants resides. The whole matter is left to the parties and the court staff and also some influential owners of local newspaper; and thus the ritual of publication is gone over. Needless to say that this ritual cannot have any sanctity if it is against the provisions of law. Substituted service should not be taken so lightly. It is a great responsibility of the court concerned to see that summons are served properly and legally and that there is no ground for any suspicious manoeuvring the service of summons. If once a person succeeds in bluffing the court in this manner, he is bound to succeed in his case and in such circumstances the court will become an instrument in the hands of unscrupulous persons. 4. The summons was not at all served on the defendant Smt. Jhaul Devi either personally or by substituted service. Hence, the ex-parte decree against her was illegal and it must be set aside. 5. I accordingly allow this revision, set aside the orders of the courts below dated March 18, 1974, October 16, 1974 and June 17, 1976, and restore the suit to its original number. 6. The defendants, Smt. Jhaul Devi and Smt. Shanti Devi will have right to contest the suit.