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2009 DIGILAW 438 (AP)

Yerakareddy Anathareddi v. Durba Lakshmi Bhavani

2009-07-08

L.NARASIMHA REDDY

body2009
Judgment : The petitioner filed O.S.No.896 of 2000 in the Court of the Principal Junior Civil Judge, Vijayawada, against the respondent, for the relief of specific performance of an agreement of sale. The respondent was set ex parte, and thereafter, an ex parte decree was passed, on 07.06.2001. The respondent filed I.A.No.1670 of 2003, under Order IX Rule 13 C.P.C., with a prayer to set aside the ex parte decree. The trial Court dismissed the I.A., through order, dated 05.04.2004. The respondent filed C.M.A.No.67 of 2004 in the Court of I Additional Senior Civil Judge, Vijayawada. The appeal was allowed, on 30.09.2005. The order of the Appellate Court is challenged in this C.R.P. Sri C.B.Ram Mohan Reddy, learned counsel appearing for the petitioner, submits that the lower Appellate Court has gone into the validity of the order, through which substituted service was permitted, and that the same is beyond the scope of the proceedings before it. He contends that the summons in the suit were sent to the same address, as furnished in the agreement of sale, through which correspondence was undertaken, and it was only on being satisfied that the respondent avoided to receive the summons, the trial Court permitted substituted service. He submits that the decree was executed, and setting aside of the same, at this stage, will lead to several complications. Sri O.Manohar Reddy, learned counsel for the respondent, on the other hand, submits that the endorsement, on the summons sent to the respondent, was that the addressee vacated the premises and the only alternative for the trial Court was to insist upon the petitioner herein to furnish the correct address of the respondent. He contends that the circumstances, under which the substituted service was ordered, are very much germane to an application filed under Order IX Rule 13 C.P.C. In the suit filed by the petitioner against the respondent, summons were sent through registered post to the address - Door No.1090634/B, Vidyanagar, Hyderabad. Thereafter, the summons were sent through process server. He went to the addressed premises. On the information received by him, he endorsed that the respondent vacated the premises. The only step to be taken on the basis of this endorsement was to insist upon the petitioner to furnish the correct address. The trial Court did not take any such steps. Thereafter, the summons were sent through process server. He went to the addressed premises. On the information received by him, he endorsed that the respondent vacated the premises. The only step to be taken on the basis of this endorsement was to insist upon the petitioner to furnish the correct address. The trial Court did not take any such steps. On the other hand, the petitioner filed I.A.No.3273 of 2000 under Order V Rule 20 C.P.C. The trial Court allowed the I.A., with an order of three words "Heard and allowed". The substituted service effected by the petitioner did not evoke any response. This naturally led to the respondent being set ex parte and it was followed by an ex parte decree. In execution of the ex parte decree, a sale deed is said to have been executed in favour of the petitioner. Soon after he came to know about the ex parte decree, the respondent filed the I.A.No.1670 of 2003 under Order IX Rule 13 C.P.C. Though the trial Court took note of the facts, referred to above, it dismissed the I.A., by resorting to discussion of factors, which are outside the scope of the I.A. The endorsement made by the process server, on the notice sent to the respondent, was taken note of. However, the trial Court doubted the correctness of that endorsement. The relevant observation reads as under: "...The process of service through out from the date of giving notice till date of the last stage of the execution proceedings and present stage of these proceedings the address of the petitioner was given the same. It is not the case of the petitioner that he was not resident of that address or that she vacated the premises some other address. Even according to the sale deeds filed by the petitioner marked as Exs.A.1 to A.7, the address of the petitioner was shown in the sale deed, as given in the plaint and other proceedings. The sale deeds are, dated 30.11.2000. Therefore, the correctness of the endorsement of the process server itself is in serious dispute. Even according to the sale deeds filed by the petitioner marked as Exs.A.1 to A.7, the address of the petitioner was shown in the sale deed, as given in the plaint and other proceedings. The sale deeds are, dated 30.11.2000. Therefore, the correctness of the endorsement of the process server itself is in serious dispute. In the absence of any specific plea of the petitioner that she was away from the residence during the period when summons/notice was sent to her, it is deemed that she was present at the time when the notice was brought to her, at the same address." There cannot be a better instance of lopsided approach, than this. The trial Court lost sight of the fact that it was only on the basis of the endorsement of process server, that substituted service was permitted. If it doubted the correctness of the endorsement, the very basis for filing of the application under Order V Rule 20 C.P.C., by the petitioner, did not exist. In addition to this, the trial Court undertook extensive discussion about the delay in filing the I.A., to set aside the ex parte decree. This Court is of the view that the whole approach of the trial Court was perverse. It is true that the lower Appellate Court did make a mention to the order passed by the trial Court in I.A.No.3273 of 2000, seeking permission to effect substituted service and expressed its views on the correctness of the adopted procedure. It has already been mentioned that the I.A., was allowed with a cryptic order. It does not need any emphasis that the participation of the defendant in a suit, can be ensured by serving summons or notices upon him. Substituted service is an exception and can be resorted to only under the circumstances mentioned in Rule 4 of Order V, C.P.C. Before ordering substituted service, the Court must be satisfied that (a) there is reason to believe that the defendant is keeping out of the way, for the purpose of avoiding service; or (b) for any other reason, the summons cannot be served upon in the ordinary way. Not only the ground, on which the substituted service has become necessary, must be mentioned, but also the satisfaction of the Court about it must be recorded. Failure to follow such procedure, would certainly vitiate the entire exercise. Not only the ground, on which the substituted service has become necessary, must be mentioned, but also the satisfaction of the Court about it must be recorded. Failure to follow such procedure, would certainly vitiate the entire exercise. Learned counsel for the petitioner submits that the reasons mentioned in an application filed under Rule 20 of Order V C.P.C., would themselves constitute the basis and justification and that it is not necessary for the Court to record its satisfaction as to the existence of the same. He places reliance upon a judgment of the Supreme Court in Basant Singh v. Roman Catholic Mission ((2002) 7 Supreme Court Cases 531). However, on a perusal of the judgment, referred to above, it becomes difficult, to cull out principle, of such a sweeping nature. The observation made by the Supreme Court was on the facts of that case and it was made clear. The lower Appellate Court found that there was non-compliance with the procedure, be it, as regards service of summons or effecting substituted service on the respondent. The result is that the respondent was denied an opportunity to defend herself in the suit. The ex parte decree was liable to be set aside. Therefore, no interference is warranted with the order under revision. The C.R.P. is accordingly dismissed. There shall be no order as to costs.