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1993 DIGILAW 888 (MAD)

Karuppan Chettiar v. Karuppiah and others

1993-12-21

PRATAP SINGH

body1993
Judgment :- C.R.P.No.4497 of 1987 is filed against the order in C.M.A.No.26of 1987 on the file of the District Court, Pudukottai, confirming the order passed in E.P.No.5S2 of 1984 on the file of the District Munsifs Court, Pudukottai. 2. C.R.P.No.4498 of 1987 is filed against the order in CM. A.No.2() of 1987 on the file of the District Court, Pudukottai, confirming the order in E.A.No.633 of 1985 in E.P.No.582 of 1984 on the file of the District Munsifs Court, Pudukottai. 3. The short facts are: Respondents have obtained a decree for specific performance of an agreement of sale against the revision petitioner. Since the revision petitioner did not execute the sale deed as per the decree, the respondents filed E.P.No.582 of 1984 for execution of the sale deed by the court. In E.P.No.582 of 1984 an ex parte order was passed and the court had executed the sale deed. While so, the revision petitioner filed E.A.No.633 of 1985 to set aside the ex parte order passed in E.P.No.582 of 1984 alleging that he was not served with any notice and that he came to know of the ex parte order only on the previous day of the filing of the application. That was resisted by the respondents. After enquiry, the learned District Munsif had dismissed E.A.No.633 of 1985 and allowed E.P.No.582 of 1984. Aggrieved by the said orders, the revision petition filed C.M.A.Nos.20and26of 1987 respectively. Having failed there, he has come forward with these revision petitions. 4. Mr.Selvarajan, learned counsel appearing for the revision petitioner, would submit that in the execution petition, substituted service by publication in Dina Malar was ordered on 3. 1985 and after publication, the executing court had proceeded with the execution. Learned counsel would submit that the circumstances which would enable the court to order substituted service by publication were not present in this case and hence, the order of the court below directing substituted service by publication in the newspaper is incorrect and the exparte order passed on such publication is equally erroneous. I have heard the learned counsel for the respondent on the above aspects. 5. I have carefully considered that submissions made by rival counsels; 0.5, Rule 20, C.P.C., provides for substituted service. I have heard the learned counsel for the respondent on the above aspects. 5. I have carefully considered that submissions made by rival counsels; 0.5, Rule 20, C.P.C., provides for substituted service. It reads as follows: (1) 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 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. (1A) 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 resided, carried on business or personally worked for gain. .(2) Effect of Substituted sen-ice: Service substituted by order of the court shall be as effectual as if had been made on the defendant personally. .(3) Where service substituted, time for appearance to be fixed: Where service is substituted by order of the court, the court shall fix such time for the appearance of the defendant as the case may require. In C.A.Balu v. G.Joseph Raj and another, 1990 T.L.N.J.260, the Division Bench of this Court has occasion to consider the applicability of 0.5, Rule 20, C.P.C. The Division Bench has laid that 0.5, Rule 20(i) of the court lays down that there must be satisfaction on the part of the court 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 resort to substituted service is not a matter of course. It could also be stated that there is a duty cast on the court to record in writing the factum of its own satisfaction about the defendant’s evasion of service. The resort to substituted service is not a matter of course. It could also be stated that there is a duty cast on the court to record in writing the factum of its own satisfaction about the defendant’s evasion of service. But atleast there must be an indication that adequate and convincing materials were placed before the court for it to arrive at the satisfaction that the defendant was keeping out of the way for the purpose of avoiding service or the summons could not be served in the ordinary way. Without the satisfaction of the conditions, namely, that the defendant is keeping out of the way to a void service, the court will not be in order to direct substituted service. The non-fulfilment of the condition set down in the provision, the satisfaction which is necessary before the court orders substituted service, would amount to material irregularity justifying the setting aside of an ex parte decree. .6. In S.T.Sankaran v. Raja Ramalingam, (1990)2 L.W. 461 , this Court had held that adopting of dilatory tactics by the defendant was not a reason to obviate the necessity for strict compliance with law pertaining to service of summons. In Pad-manabhan v. R.R.Shah and four others, (1988)1 L.T.W.1 , another Division Bench of this Court had held that in a case where summons was not served on defendant, due to wrong address being given by the plaintiff, though he was aware of the correct address, publication in a newspaper is not sufficient. .7. Certain facts which are relevant need be stated at the outset: In E.P.No.582 of l984 on 111. 1984 it was reported that the judgment-debtor is dead and on 211. 1984 a memo was filed by the petitioner stating that the judgment-debtor is alive and notice was ordered. On 21. 1985, there is an endorsement that the judgment-debtor refused to receive notice and hence not served. On that endorsement, the learned District Munsif had ordered notice by post and through court. On 22. 1985, the notices were not returned, and the District Munsif had passed an order ‘await’ and posted the case to 3. 1985. On 3. 1985, the endorsement is that the correct address was not given and hence notice could not be served. On that endorsement the learned District Munsif had ordered steps for substituted service by publication in ‘Dina Malar’. 1985, the notices were not returned, and the District Munsif had passed an order ‘await’ and posted the case to 3. 1985. On 3. 1985, the endorsement is that the correct address was not given and hence notice could not be served. On that endorsement the learned District Munsif had ordered steps for substituted service by publication in ‘Dina Malar’. Obviously, a petition was filed and substituted service was ordered by publication in Dina Malar. On 4. 1985, the paper publication was filed and the petit ion was allowed, on the date on which substituted service was ordered, the endorsement was that because correct address was not given, notice was not served. Thus, at the first time, when notice was issued to the revision petitioner, it was returned with the endorsement that judgment-debtor was dead and then the decree-holders filed memo that judgment-debtor is alive and then notice was ordered and it was returned with an endorsement that judgment-debtor refused to receive notice. Then for the third time, notice was taken and it was returned with’ an endorsement that correct address was not given. Only on the fourth occasion, the learned District Munsif had ordered steps for substituted service for publication in ‘Dinamalar’ and then had ordered substituted service. Mrs.N.Krishnaveni, would submit that three times service of notice could not be secured and only on the fourth occasion, the learned District Munsif had ordered steps for substituted service and that the learned District Munsif was perfectly in order in doing so. Under 0.5, Rule 20, C.P.C. not only in a case 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 but also in a case where for any other reason, the summons cannot be served in the ordinary way, the court shall order summons to be served by substituted service. The learned counsel would submit that this case would fall under the clause “ for any other reason the summons cannot be served in the ordinary way”. On all the three occasions, the summons were returned for three different reasons. In the circumstances, is cannot be stated that the order of the court below. directing the party to take steps for substituted service cannot be considered an erroneous order. On all the three occasions, the summons were returned for three different reasons. In the circumstances, is cannot be stated that the order of the court below. directing the party to take steps for substituted service cannot be considered an erroneous order. In Doraiswami Aiyar v. Balasundaram Aiyar, 52 M.L.J. 477, this Court had held that the advisability of effecting service by substituted service is a matter primarily for the trial court alone under 0.5, Rule 20 of the Civil Procedure Code and the appellate court has no jurisdiction to consider whether the order of the trial court for substituted service was on sufficient or insufficient grounds and it has only to see whether the order was issued according to law and whether the trial court was satisfied that the conditions required by 0.5, Rule 20 of the Civil Procedure Code were fulfilled; if so, then the order was legally made. Applying the ratio of this ruling, the order of the lower appellate court cannot be held to be erroneous. In Rajagopalachari v. Subramaniam, A.I.R. 1932 Mad. 472, it was held that 0.5, Rule 20 invests the court with jurisdiction to order substituted service 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 that summons cannot be served in the .ordinary way. If, at the time the court is so satisfied then the service cannot be invalidated by showing that its belief was erroneous. On the facts of this case, the last two rulings are applicable and hence I am unable to accept the submission made by Mr.Selvarajan that the orders of the court below, directing the respondent to take steps for substituted service and ordering substituted service are liable to be set aside. 8. The lower appellate court has also pointed out that the revision petitioner had not figured as a witness and substantiated his case. What all he has stated in his affidavit in support of the application were denied and disputed by the respondent, he has not come forward as a witness to substantiate the allegation made in his affidavit that he came to know of the ex parte order only on 19. 1985. On that ground also, the petitioner’s claim is liable to be set aside. 1985. On that ground also, the petitioner’s claim is liable to be set aside. When E.A.No.633 of 1985 is dismissed, E.P.No.582 of 1984 will have to be allowed. Both the orders of the courts below are not liable to be set aside. 9. In view of the above, both the civil revision petitions fail and shall stand dismissed. No costs.