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Chhattisgarh High Court · body

2009 DIGILAW 189 (CHH)

DWARIKA PRASAD v. SHAKUNTALA DUBEY

2009-06-29

T.P.SHARMA

body2009
JUDGMENT ( 1 ) BY this appeal the appellant has challenged legality and propriety of the order dated 11-5-2004 passed by the 2nd additional Motor Accident Claims Tribunal, baloda Bazaar in Miscellaneous Claim Case No. 20/2003, whereby application for setting aside the ex parte award was dismissed on the ground that notice was duly served upon the present appellant. ( 2 ) ORDER is challenged on the ground that no personal service effected upon the appellant only on the basis of publication of notice in the daily newspaper, learned Claims Tribunal proceeded ex parte against the appellant and on the application for setting aside the ex parte award the Claims Tribunal has dismissed the application and thereby committed illegality. ( 3 ) FACTS of the case, in short, leading to the present dispute are that respondents No. 1 to 5 had filed claim petition under Section 166 of the Motor Vehicles Act, 1988 against the present appellant/owner of the vehicle before the 2nd Additional Motor Accident Claims tribunal, Baloda Bazaar for claim of compensation. Notice was issued to the appellant, but personal service was not effected. Notice sent through registered post was also not effected whereupon notice was published in daily news paper and finally learned Claims Tribunal proceeded ex parte and ex parte award was passed. When the serving officer went to the appellant for execution of attachment warrant, application for setting aside the ex parte award was filed and the same was dismissed on the ground that the present appellant was appearing regularly before another Court of Additional Chief Judicial Magistrate, Baloda Bazaar where he was facing criminal trial for the offence punishable under Section 304-A of the ipc but has not appeared before the Claims tribunal and was having knowledge of pendency of the present case. ( 4 ) I have heard learned counsel for the parties, perused the order impugned and record of the Court below. ( 5 ) LEARNED counsel for the appellant argued that no personal service was effected upon the appellant, the Court below has proceeded ex parte on the basis of notice published in news paper and when application for setting aside the award was filed, same was dismissed without any cogent ground. ( 5 ) LEARNED counsel for the appellant argued that no personal service was effected upon the appellant, the Court below has proceeded ex parte on the basis of notice published in news paper and when application for setting aside the award was filed, same was dismissed without any cogent ground. ( 6 ) ON the other hand, learned counsel for the respondents opposed the appeal and submitted that notice effected by publication is valid service in accordance with Order 5, Rule 20 (1-A) of the CPC. ( 7 ) ORDER impugned reveals that when service is not effected through personal service or service through registered post, notice was published in daily newspaper Desh Bandhu and finally learned Claims Tribunal proceeded ex parte against the appellant. In case the defendant keeps out himself for the purpose of avoiding service, notice may be served by substituted service in accordance with Rule 20 of Order 5 of the CPC which reads as follows :- "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 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 service.- Service substituted by order of the Court shall be as effectual as if it has 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. (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. " ( 8 ) FOR effecting substituted service the court is required to arrive at a finding that the person to whom service is required, 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, and the Court is required to serve summons by affixing a copy thereof in some conspicuous place in the Court house, and also upon some conspicuous part of the house 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. While effecting service in the aforesaid manner under clause (1) of Rule 20 of order 5 of the CPC, the Court is also competent to order service by the advertisement in the newspaper in accordance with clause (1 A)of Rule 20 of Order 5 of the CPC. ( 9 ) NO specific procedure for enquiry into or trial of the claim petition has been provided under the provisions of the Motor Vehicles Act, 1988, but Sections 168 and 169 of the Motor vehicles Act, 1988 provide summary procedure. Learned Claims Tribunal has opted one part of Rule 20 of Order 5 of the CPC, but has left the first part of the said Rule which is mandatory and the Court has no option to escape from the mandatory provisions for proceeding under clause (1a) of Rule 20 of Order 5 of the CPC. ( 10 ) ADMITTEDLY, the order reveals that the Claims Tribunal has not recorded reason and has not ordered for service by affixing copy of notice in some conspicuous place in the court-house and conspicuous part of the house Of the defendant/present appellant, but the Tribunal has simply published notice under clause (1 A) of Rule 20 of Order 5 of the cpc. Service in accordance with the provisions of clause (1) of the Rule 20 of Order 5 of the CPC by affixing notice in some conspicuous place in the Court-house and conspicuous part of the house of the defendant is sine qua non for proceeding under clause (1a)of Rule 20 of Order 5 of the CPC for notice by an advertisement in a newspaper. In absence of such rule or such Service by affixing notice, advertisement of notice in the newspaper is not legal and the Court was not empowered to proceed 6x' parte against the present appellant only on the basis of advertisement of notice in the daily newspaper. Patently, the Claims Tribunal has committed illegality in proceeding ex parte against the appellant and also by not setting aside the alleged order which was not legal. For the foregoing reasons, the order impugned is not sustainable and deserves to be set aside. ( 11 ) IN the result, the appeal is allowed and the order impugned is set aside. Consequently, the ex parte award dated 3-10-2001 passed by the 2nd Additional Motor Accident Claims tribunal, Baloda Bazaar in Claim Case No. 58/ 2001 is also set aside. No order as to costs. ( 12 ) PARTIES are directed to appear before the said Claims Tribunal on 10-8-2009 for further progress of the case. Appeal allowed. --- *** --- .