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2009 DIGILAW 450 (AP)

Chandergupt Arora v. Shaheen Khan

2009-07-13

L.NARASIMHA REDDY

body2009
Judgment :- The 1st respondent filed O.S.No.464 of 2002 in the Court of V Senior Civil Judge, City Civil Court, Hyderabad, against the appellant and respondents 2 and 3, for the relief of declaration of title and recovery of possession of the suit schedule property. On the ground that the premises, where the appellant was residing and to which the summons were addressed, were found locked, on two occasions, the 1st respondent sought permission of the Court to effect substituted service of summons. On permission having been accorded, substituted service was taken out. Thereafter, the appellant was set ex parte. That was followed by an ex parte decree, dated 18.09.2003. At the stage of execution of the decree, the appellant came to know about it. Soon thereafter, he filed I.A.No.58 of 2005 under Order IX Rule 13 C.P.C. The I.A., was dismissed, initially on 18.05.2005. The appellant filed C.M.A.No.507 of 2005, before this Court. Through order, dated 27.02.2007, this Court allowed the C.M.A., and remanded the matter to the trial Court. The I.A. was dismissed, after remand, on 12.03.2008. Hence, this C.M.A. Sri P.Shiv Kumar, learned counsel for the appellant, submits that there was absolutely no basis for the trial Court, in ordering the substituted service, simply on the ground that the premises were found locked. He contends that the 1st respondent filed O.S.No.34 of 1993, against the appellant, and in that suit, appearance was entered and written statement was filed. Learned counsel submits that the said suit was very much pending, when O.S.No.464 of 2002 was instituted and the whole exercise of obtaining endorsements, as to locking of door, for effecting substituted service, was resorted to. He further submits that the newspaper, in which the publication was made, is totally unknown and did not have any circulation. It is alleged that the appellant does not know 'Telugu', and still, the publication was made in a newspaper of that language. Sri P.Pandu Ranga Rao, learned counsel for the 1st respondent, on the other hand, submits that the manner in which the substituted service was effected, cannot be examined, or verified, at this stage. He contends that the appellant was very much aware of the suit, but was only watching the various stages in it. Sri P.Pandu Ranga Rao, learned counsel for the 1st respondent, on the other hand, submits that the manner in which the substituted service was effected, cannot be examined, or verified, at this stage. He contends that the appellant was very much aware of the suit, but was only watching the various stages in it. Learned counsel submits that the trial Court was satisfied, as to the requirement under Rule 20 of Order V of C.P.C., before it effected substituted service, and that no interference is warranted with the order under appeal. The appellant figured as 1st defendant in the suit, filed by the 1st respondent. Relief of very far-reaching consequences, namely declaration of title and recovery of possession of an item of urban property, was prayed for. Respondents 2 and 3, who figured as defendants 2 and 3, appear to be almost formal parties. In the summons sent by the Court, an endorsement was made to the effect that the premises are locked. This was taken note of on 25.06.2002. On the next date of hearing, i.e. 20.08.2002, same thing was reported about the appellant. Respondents 2 and 3 herein were set ex parte. The trial Court directed fresh summons to the appellant, through a private courier. The record discloses that the bailiff is said to have affixed the notice on the door, on finding that it was locked and that on the speed post receipt, dated 03.12.2002, it was endorsed "not known". At that stage, the 1st respondent moved the Court seeking permission to effect substituted service. The paper publication in a Telugu daily, known as 'Janata', was effected, on 08.03.2003. On 11.03.2003, the appellant was set ex parte. Ex parte evidence was recorded on 23.07.2003 and subsequent dates, and ex parte decree was passed on 18.09.2003. From the above, it becomes evident that the substituted service was effected, only on the ground that the door of the appellant is found locked twice and the postal authorities have endorsed "not known". Service of summons, in a suit, through publication is an extraordinary step. Before permitting such service, the Court must be satisfied that, either the defendant is purposefully avoiding the receipt of summons, or having regard to the facts of the case it is not possible to serve the notice. No finding was recorded by the trial Court, n either way. Service of summons, in a suit, through publication is an extraordinary step. Before permitting such service, the Court must be satisfied that, either the defendant is purposefully avoiding the receipt of summons, or having regard to the facts of the case it is not possible to serve the notice. No finding was recorded by the trial Court, n either way. The permission was accorded, only on the ground that the door was locked. A citizen cannot be expected to keep the doors of his residence open through out the day, expecting service of summons, or some such activity. In these days of mechanical life, a person has to be in the place of his business or activity, on different parts of the day. Take for instance, a person living alone, or both the spouses being employed. They go to offices in the morning duly locking their residence and come back in the evening. On every working day, their premises are found locked. The bailiff, or the postal official, as the case may be, has to make an endeavour, to serve the summons at a time when the party is available. It is a different thing, in case the premises are locked, purposefully with the object of avoiding service of summons. Such an intention can be culled out, only if proper verification is undertaken. On the sole ground that the premises were locked at a given point of time, the Court cannot be justified in permitting the substituted service. The effect thereof would be that a decree would emerge without the participation of the affected party. It would be a misnomer to call it as an adjudication. Reverting to the facts of the case, this Court feels that a deliberate attempt was made to ensure that the appellant does not know about the filing of O.S.No.464 of 2002 and an ex parte decree is obtained. The reason is that the 1st respondent himself filed O.S.No.34 of 1993 against the appellant for the relief of perpetual injunction, in respect of that very property and it was pending by the time O.S.No.464 of 2002 was filed. Any person with bona fide intention would have sought for amendment of prayer in that suit, or would have brought to the notice of the counsel representing the appellant herein, in that suit, about the filing of a subsequent suit. Any person with bona fide intention would have sought for amendment of prayer in that suit, or would have brought to the notice of the counsel representing the appellant herein, in that suit, about the filing of a subsequent suit. None of these steps were taken, and the whole episode gives an impression that the 1st respondent did not act fairly. The trial Court proceeded on a highly technical manner and it failed to take note of the lapses in the very process of permitting substituted service. This Court is of the view that the ex parte decree is liable to be set aside. The appeal is accordingly allowed, and the order under appeal is set aside. Consequently, I.A.No.58 of 2005 is allowed and the ex parte decree, dated 18.09.2003, is set aside. There shall be no order as to costs.