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2003 DIGILAW 67 (JK)

Sumi Aga v. J&K Bank Ltd.

2003-03-31

Y.P.NARGOTRA

body2003
Is service of summons through publication in a daily newspaper without exhausting other modes envisaged in Order 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&K bank filed a suit for recovery of Rs. 3,85,692.15 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 persuant 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 defendents could not be served so the same direction was repeated by the Ld. trial court in its two more iterim 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 Noweshera 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 exparte and consequently exparte decree was passed on 30-4-98 by the trial court. 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 exparte and consequently exparte decree was passed on 30-4-98 by the trial court. The defendants/petitioners moved the trial court for setting aside exparte 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 11-11-98 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 the suit as defendants 1 & 4 had been appearing in High Court through counsel as is borne out by the order of the Honble High Court passed on 04-03-91", therefore his case fell within the ambit of 2nd proviso to order 9 Rule 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 Order 9 Rule 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 Rule 10 the summons is required to be served by delivering or tendering a copy thereof but if the plaintiff so chooses or the court so desires, the court may serve the summons in the first instance by registered post (acknowledgement due) instead of delivery or tendering of the same. Rule 11 provides that where there are more defendants than one, service of summons shall be made or each defendant. Rule 12 lays down that wherever it is practicable service shall be made on the defendant in person unless he has an agent empowered to accept service in which case service on such agent shall be sufficient. Rule 11 provides that where there are more defendants than one, service of summons shall be made or each defendant. Rule 12 lays down that wherever it is practicable service shall be made on the defendant in person unless he has an agent empowered to accept service in which case service on such agent shall be sufficient. Rule 15 provides that when defendant is absent from his residence it may be made on any adult member of his family. Rule 16 imposes a duty on the serving officer to obtain signature of the person to whom the copy of the summon is delivered. When such person refuses to give his signature as a token of acknowledgement of the service or where the serving officer after using all due and reasonable diligence cannot find the defendant and there is no likelihood of his being found at his residence within a reasonable time and there is no agent to accept service nor there is any other person upon whom service can be made, then Rule 17 provides for effecting service by affixing a copy of summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or works for gain. Rule 19-A provides for issuance of summons through registered post also in addition to the aforesid modes. Rule 20 provides for substituted service. It reads: 20. Substituted service -- (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. 1-A. 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. 1-A. 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. Effect of substituted service -- (2) Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally. Where service substituted, time for appearance to be fixed -(3) 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." 9. From the bare reading of the aforementioned Rule, it becomes manifestly clear that this mode of substituted service, can be adopted only when the court has reason to believe that defendant is keeping out of the way for the purpose of avoiding service or that for any other reason summons cannot be served in the ordinary way. Service of summons by using ordinary modes appears to be a general rule while service by substituted service an exception. In comparison to service by ordinary modes, the substituted service is of a weak nature being presumptive in nature. Such service cannot therefore be preferred to the service by ordinary modes. Substituted service under Rule 20 can only be resorted to when any of the two stipulated conditions are satisfied. The language of the Rule 20 itself suggests clearly that service under the rule can be ordered only when the service through ordinary way is not possible. Therefore before substituted service is ordered, it is necessary to see that ordinary modes of service of summons have been exhausted but the party to be served has not been served for any of the two stipulated reasons. 10. In the case in hand at the outset Ld. transferee court ordered the service of defendants by Do parat summons. Only one summons was returned out of the two issued, with the report that the place in which the defendants were shown to be resident of was a big one as such they could not be traced out. The trial court on receiving this report of the process server instead of asking the plaintiff for furnishing fresh particulars readily allowed his application and ordered the service through publication in the newspaper. The trial court on receiving this report of the process server instead of asking the plaintiff for furnishing fresh particulars readily allowed his application and ordered the service through publication in the newspaper. By no stretch of reasoning it can be understood stood how the defendants could be held to be avoiding service of summons when even the process server was not in a position to reach their place of residence. Unless there is a possibility of serving the summons there can be no question of one `s keeping out of way for avoiding service on him. Ld. trial court had not issued any notice/summons through registered post still the Ld. trial Judge in his order dated 19-8-1997 has observed that the defendants have been issued registered notices also but instead of this they did not present themselves before the court.� It appears that Ld. trial Judge had not bothered to examine the file and had ordered for substituted service on the asking of the party in a most casual and routine manner. If a plaintiff does not furnish the full addresses of the defendants such failure cannot be a reason for a court to infer that the summons cannot be served in the ordinary way. A person suing has a mandatory duty that he shall furnish the complete address of the person sued. Therefore the order of the trial court by which substituted service was ordered is inherently without jurisdiction. Therefore consequent publication of the summons/notices in the newspaper cannot be deemed to be a valid and effective service on the defendants. 11. Be that it may, the defendants-petitioners made an application for setting aside exparte decree on the ground that they had no knowledge of the transfer of the suit; that the resort to substituted service was not called for; that they had no knowledge of publication. They also claimed condonation of delay. Ld. trial court has rejected the application of the petitioners. The reasons advanced by the Ld. trial court for rejecting the applications appear to be rediculous. How could the Ld. trial Judge impart knowledge to the defendants/petitioners of the pendancy of the case in his court from the fact that on their behalf a counsel appeared on 04-03-1991 before the High Court. The reasons advanced by the Ld. trial court for rejecting the applications appear to be rediculous. How could the Ld. trial Judge impart knowledge to the defendants/petitioners of the pendancy of the case in his court from the fact that on their behalf a counsel appeared on 04-03-1991 before the High Court. The knowledge about the pendency of suit before the court below and of date of hearing was relevant for the purposes of the second proviso to Order 9 Rule 13 CPC and not about its earlier pendancy in the High Court. Admittedly the suit was transferred by the High Court in the absence of the parties and for that reason a direction was made for issuance of notices to the parties before the court below proceeded further in the case. Ld. trial Court appears to have misconstrued the provision of law and misapplied the same. 12. The impugned order of the Ld. trial court therefore is not sustainable on any ground. 13. For the reasons shown by the petitioners their application ought to have been allowed since the service on the petitioners-defendants cannot be held to be legal and sufficient and consequently the trial courts exparte decree and judgement as well as execution proceedings deserve to be quashed and set aside. Therefore the impugned order of the Ld. trial court is set aside. The application of the petitioners for setting aside exparte decree and judgement is allowed and the delay if any is condoned and consequent thereupon the execution proceedings taken on exparte decree are also quashed. The Ld. trial court shall proceed afresh into the case from the stage at which the suit was received after transfer. The parties personally or through counsel shall appear before the trial court on 19-04-2003. The record of the court below with a copy of this order be returned.