JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Bharat Pratap Singh, learned counsel for the petitioners and perused the record. 2. This writ petition is directed against order dated 3.3.2005 passed by 11th Additional District Judge, Aligarh in Civil Appeal No. 28 of 2004, Raja Amar Pratap Singh v. Smt. Basanti Devi and others. 3. It is pleaded in the writ petition that an agreement was executed on 1.6.1975 between respondent, Raja Amar Pratap Singh and petitioner Nos. 1, 2 and 3 i.e. Santosh Kumar Navman, Vijay Prakash Navman and Krishna Kumar Navman and one Basanti Devi (since dead) and now represented by legal heirs i.e. petitioners No. 4 to 7. The agreement was in respect of plot No. 695 having area 5 bighas, 6 biswas situated at Masoodabad, Qusba and Tehsil Kol, District Aligarh for a sum of Rs. 80,000/- out of which Rs. 10,000/- was paid in advance. The agreement, however, could not be registered for about two years due to detention of petitioner No. 3 under Maintenance of Internal Security Act (MISA) during Emergency. It is alleged that later on the extension of agreement was agreed and on 23.8.1982 a registered agreement of sale after receiving Rs. 20,000/- through bank draft dated 23.8.1982 was executed. The sale-deed was to be executed after obtaining permission from Urban Ceiling Authority by respondent. The possession of the property, it is alleged, remained with petitioners since they were already in possession even before execution of agreement on 1.6.1975. 4. Respondent, however, started obstruction in alleged peaceful possession of the property in dispute, hence the petitioners filed Civil Suit No. 248 of 1986, Krisna Kumar Navman and others v. Aligarh Muslim University and others, in the Court of Civil Judge, Aligarh on 4.4.1986 wherein respondent, Raja Amar Pratap Singh was impleaded as proforma defendant No. 2. During pendency of the suit the respondent- defendant No. 2 moved an application dated 17.2.1987 for transposing him as plaintiff alongwith other plaintiffs and with the consent, application was allowed and transposition effected. 5. The petitioners filed another suit for specific performance of alleged registered agreement of sale being suit No. 365 of 1995 in the Court of Civil Judge (S.D.), Aligarh. The suit was filed on 30.5.1995. Notice was issued to the defendant. Registered letter was returned with endorsement “not claimed”. The Court also passed an order for substituted service. 5. The petitioners filed another suit for specific performance of alleged registered agreement of sale being suit No. 365 of 1995 in the Court of Civil Judge (S.D.), Aligarh. The suit was filed on 30.5.1995. Notice was issued to the defendant. Registered letter was returned with endorsement “not claimed”. The Court also passed an order for substituted service. It is alleged that petitioner No. 1 himself had gone to Dehradun and met respondent on 29.9.1995 and apprised him of the suit with request to enter appearance. The notice was also published in daily newspaper “Doon Darpan” having circulation at Dehradun and is in the approved list of District Court, Dehradun. The respondent, however, did not appear. The suit was decreed ex parte on 22.1.1996. A copy of ex parte judgment is on record as Annexure-6 to writ petition. 6. The Court below has observed that plaintiffs filed an affidavit as evidence in support of their case and one Santosh Kumar PW 1 also filed his affidavit in evidence. Besides, copy of agreement, notice and receipts were also filed. In absence of any contradiction or defence by defendant, the suit was decreed ex parte. 7. The petitioners put the decree into execution vide Execution Case No. 37 of 1996. No objection was filed though it is alleged that a notice of execution case was served upon respondent on 19.8.1996. The Court below on 20.1.1997 executed the sale-deed in favour of petitions after accepting Rs. 50000/-. 8. Restoration application alongwith an application seeking condonation of delay was finds on 20.9.1997 on behalf of respondent through his attorney Sri Atikur Rehman, S/o Late Abdul Gafoor. It is said that till the date of the decree of the suit, no notice or summon or otherwise information was received by the respondent. He got the information for the first time on 19.8.1996 when application of execution in Execution Case No. 37 of 1996 was received through registered post. Thereafter on 21.8.1996 inspection was made at Aligarh which revealed about ex parte decree dated 22.1.1996. Inspection was made through Sri B.N. Swami, Advocate who was instructed to file restoration application alongwith stay application. Thereafter on several inquiries Sri Swami communicated that he (counsel) has taken desired steps and there is no need of coming to Aligarh. Thereafter on 21.8.1996 inspection was made at Aligarh which revealed about ex parte decree dated 22.1.1996. Inspection was made through Sri B.N. Swami, Advocate who was instructed to file restoration application alongwith stay application. Thereafter on several inquiries Sri Swami communicated that he (counsel) has taken desired steps and there is no need of coming to Aligarh. Ultimately, it was revealed that Sri B.N. Swami, Advocate had misled the respondent and actually had not filed any restoration application at all. 9. The restoration application was opposed vide objection dated 15.10.1997. The Court below, however, allowed restoration application after condoning delay by order dated 18.8.1998 on payment of cost of Rs. 2000/-. The petitioners aggrieved by the said order, filed Civil Revision No. 129 of 1998 which has been dismissed on 20.4.1999 by IX Additional District Judge, Aligarh with further permission to defendant-respondent to file its reply within 15 days and thereafter, trial Court has been directed to decide the suit within six months. 10. Challenging these two orders dated 18.8.1998 and 20.4.1999, the petitioners filed Writ Petition No. 30196 of 1999, Smt. Basanti Devi and others v. IXth Additional District Judge, Aligarh and others. The aforesaid writ petition was allowed vide judgment dated 11.8.2003. Hon’ble Rakesh Tiwari, J. remanded the matter to Civil Judge (Senior Division) Aligarh to decide restoration application afresh in the light of the objections raised by petitioners. Thereafter, the trial Court rejected delay condonation application as well as restoration application vide order dated 29.1.2004. Civil Appeal No. 28 of 2004 was filed which has been allowed by the impugned order and trial Court’s order dated 29.1.2004 has been quashed. Delay Condonation Application and Restoration Application of the respondents has been accepted on payment of cost of Rs. 2000/-. The suit has been required to be decided on merit. 11. Counter-affidavit has been filed on behalf of the respondent sworn by Raja Amar Pratap Singh himself. It is said that the suit has been filed on false and concocted facts. No notice or registered letter was ever served upon the respondent and he had never received any summon. None of the petitioners ever personally met the respondent. No notice allegedly published in daily newspaper “Doon Darpan” was received by respondent. It is said that the suit has been filed on false and concocted facts. No notice or registered letter was ever served upon the respondent and he had never received any summon. None of the petitioners ever personally met the respondent. No notice allegedly published in daily newspaper “Doon Darpan” was received by respondent. The date of publication of notice in the newspaper is not clear since, the said newspaper is not a known newspaper having wide circulation in District Dehradun and its locality. The alleged publication, if any, cannot be said to be a proper way of service of summon upon the respondent. Other facts as stated before the trial Court in restoration application have been reiterated and in respect of the observation made by this Court in its earlier judgment dated 11.8.2003, it is said that Chapter IV Rule 12 of Allahabad High Court Rules is not applicable to the proceedings before the Civil Court and the lower appellate Court has rightly allowed the two applications. 12. The petitioners have filed rejoinder-affidavit reiterating the averments as stated in writ petition. 13. Shri Bharat Pratap Singh, learned counsel for the petitioners vehemently contended that notice was clearly served upon respondent, yet it chose to remain silent. Various modes of service of notice were adopted by the trial Court and, therefore, bare submission of the respondent that he did not receive any notice without substantiating the same could not have been accepted by lower appellate Court and, hence, the impugned order is illegal and liable to be set aside. 14. The record shows that plaint of original suit No. 365 of 1995 is dated 30.5.1995, meaning thereby the suit was filed just immediately before commencement of summer vacation in the Civil Courts. Though order-sheet of the lower Court is not made part of record of the writ petition but from a perusal of the impugned order dated 3.3.2005 it appears, while registering the suit, trial Court fixed 11.8.1995 for filing written statement and 17.8.1995 for framing of issues. No written statement was filed on 11.8.1995. 15. Thereafter, application No. 9C-2 appears to have been filed by plaintiff-petitioners on 14.8.1995 for permission of publication of notice in newspaper which was accepted on the same date by the trial Court and its fixed 10.10.1995 for filing written statement and framing of issues. No written statement was filed on 11.8.1995. 15. Thereafter, application No. 9C-2 appears to have been filed by plaintiff-petitioners on 14.8.1995 for permission of publication of notice in newspaper which was accepted on the same date by the trial Court and its fixed 10.10.1995 for filing written statement and framing of issues. It is said that this application 9C-2 is not available on record. Only order dated 14.8.1995 was available which according to lower appellate Court, did not show whether the application dated 14.8.1995 was support by any affidavit or not. The order also did not show any reason for accepting the said application as to why the order for publication is being passed, and, whether any report regarding service of summons after registration of suit was available or not. The next date fixed in the suit was 17.8.1995 but earlier thereto on 14.8.1995 order was passed for publication of notice in the news-paper. The Court below has also said that from the affidavit filed by Shri Navman only this much is clear that he had gone to Dehradun on 29.9.1995 and informed respondent about pendency of original suit No. 365 of 1995 meaning thereby the respondent admittedly was not aware of pendency of the aforesaid suit till 29.9.1995. In the circumstances, order of publication passed on 14.8.1995 was not in accordance with Rules. It is also observed that in Execution Case No. 37 of 1996 Shri B. N. Swami, Advocate has admitted that he was engaged as counsel by respondent for restoration and other matters pending in the trial Court. 16. A suit involving a large area of land has been decreed by the Court below almost within six months, ex parte. It has permitted the plaintiff to get the sale-deed executed for a piece of land having more than five bighas in Aligarh for a petty sum of Rs. 80,000/-. 17. I first proceed to consider whether procedure adopted by the trial Court in decreeing suit ex parte, generate confidence, whether it has proceeded in accordance with the procedure prescribed in C.P.C. or not. 18. Section 27 C.P.C. contemplates that summons shall be issued to the defendant to appear and answer the claim and may be served in the manner prescribed. The procedure is specified in the Rule under Order V C.P.C. 19. 18. Section 27 C.P.C. contemplates that summons shall be issued to the defendant to appear and answer the claim and may be served in the manner prescribed. The procedure is specified in the Rule under Order V C.P.C. 19. Rule 1, Order V says, when a suit has been duly instituted, a summon may be issued to the defendant to appear and answer the claim on a date to be specified therein. The second proviso provides that the Court may direct the defendant to file written statement of defendant, if any, on the date of his appearance and shall cause entry to be made to that effect in the summon issued to the party concerned. 20. Sub Rule (2), however, contemplates that every summon shall be accompanied by a copy of the plaint, or, if so permitted, by a concise statement. 21. Order V Rule 9 talks of delivery or presumption of summon for service. It applies to a case where defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent, resident within that jurisdiction who is empowered to accept the service of summon. It provides that in such case, summon shall be delivered or sent through an officer of the Court to be served by him or one of his subordinates or to such courier services as are approved by the Court, unless otherwise directed by the Court. 22. Sub Rule (3) inserted by the High Court, Allahabad amendment authorises the Court that in lieu of, or in addition to, the procedure indicated in sub-rule (1), such summon may be served by registered post addressed to the defendant at the place where he resides or carries on business or works for gain or to the agent at the place where he resides. It also talks of deemed service observing that unless the cover is returned undelivered by the post office on account of want of proper address or any other sufficient reason, the summon may be deemed to have been delivered to the addressee at the time when it should have reached him in the ordinary course. 23. Here the defendant was residing at Dehradun i.e. out side the jurisdiction of the trial Court. Rule 21, Order V as amended by Allahabad High Court provides for service of summons in such matters. 23. Here the defendant was residing at Dehradun i.e. out side the jurisdiction of the trial Court. Rule 21, Order V as amended by Allahabad High Court provides for service of summons in such matters. The said Rule and the amendment reads as under: “21. Service of summons where defendant resides within jurisdiction of another Court.—A summons may be sent by the Court by which it is issued, whether within or without the State, either by one of its officers or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail Service or by any other means as may be provided by the rules made by the High Court to any Court (not being the High Court) having jurisdiction in the place where the defendant resides. High Court Amendments Allahabad.— “(2) In lieu of, or in addition to, the procedure indicated in sub-rule (1), such summons may also be served by sending it by registered post addressed to the defendant at the place where he ordinarily resides or carries on business or works for gain. Unless the cover is returned undelivered by the post office on account of want of proper address or other similar reason, the summons may be deemed to have been delivered to the addressee at the time when it should have reached him in the ordinary course.” 24. Order V Rule 20 provides for substituted service and reads as under: “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. (lA) Where the Court acting under sub-rule (1) orders service by an advertisement in a news-paper, 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. (lA) Where the Court acting under sub-rule (1) orders service by an advertisement in a news-paper, 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 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.” 25. Ex facie a substituted service can be resorted to only where the Court is satisfied that the defendant is keeping out of way for the purpose of avoiding service and that for any other reason the summons cannot be served in ordinary way. This is a condition precedent for attracting an order for substituted service under Rule 20. 26. In M/S Radha Krishna Bansidhar (Pvt.) Ltd. v. Basdev Prasad and others, 1988(2) ARC 75, this Court took the view that satisfaction of the Court before ordering for substituted service the above two conditions are conditions precedent otherwise the order for substituted service would be illegal. This Court in para 17 of the judgment observed that when the trial Court performs its duty in deciding the suit it must be presumed, like all official and judicial acts that the Court had proceeded with the trial of the suit in the manner ordained by the Code: that the Court had passed the orders directing substituted service on the appellant only after it had satisfied itself that there was reason to pass such an order. Certain amount of sanctity is always attached to the orders passed by the Court and it would be proper and fair to presume that the Court acts in accordance with the procedure prescribed by law. However, this presumption is always rebuttable and the defendant can satisfy the Court that such presumption in the facts of that case should not be raised or cannot be raised or is not justified. It relied on the decisions of certain other High Courts which I shall refer hereunder. 27. However, this presumption is always rebuttable and the defendant can satisfy the Court that such presumption in the facts of that case should not be raised or cannot be raised or is not justified. It relied on the decisions of certain other High Courts which I shall refer hereunder. 27. In Kedar Mull Agarwalla and another v. Wazifunnessa and another, AIR 1934 Cal 745, it was held that even though the substituted service may be considered as personal service on the defendants under Order V, Rule 20 and clause (2), this would not preclude the defendants from afterwards showing that in fact there had been no service on them at all and that the order for substituted service was procured on misrepresentation of facts. 28. A Full Bench of Andhra Pradesh High Court in G. Shanmukhi v. Utakur Venkatarami Redii and another, AIR 1957 AP 1, said: “In the case of substituted service under Order V, Rule 20 there are two conditions prescribed before it can be restored to, viz. that the Court must be satisfied either (1) that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or (2) that for any other reason the summons cannot be served in the ordinary way. Therefore, when the question arises as to whether in a particular case, substituted service obtained from the Court is or is not “due” service within the meaning of Order 9, Rule 13, it will have to determined by ascertaining whether the representations made to the Court by the plaintiff were or were not true, that is to say, whether the defendant could be presumed in the circumstances, to have had or had not actual knowledge. Hence, in cases where only substituted service has been effected on the defendant in terms of Order V, Rule 20, the substituted service may or may not be “due service” required by Order IX, Rule 13 according to the circumstances of the case. It is open to the defendant to establish that he never avoided service and that, in any case, notice of the claim had not been brought home to him.” 29. It is open to the defendant to establish that he never avoided service and that, in any case, notice of the claim had not been brought home to him.” 29. A Division Bench of Patna High Court in Ram August Tewari and others v. Bindeshwari Tewari and others, AIR 1972 Pat 142 , held that substituted service can be resorted to only when material is placed before the Court to show that the defendant is keeping out of the way for the purpose of avoiding service. 30. Dr. A.S. Anand (as his Lordship then was) in Sujan Singh and others v. Dina Nath and others, AIR 1988 J & K 77, observed that the Court has to record its satisfaction that there was reason to believe that the respondent was keeping out of the way for the purpose of avoiding service or for any other reason summons could not be served in ordinary course. It also observed that an order for substituted service cannot be passed in an absolutely mechanical manner ignoring the provisions of C.P.C. The Court disapproved the manner of short-circuiting the whole procedure. 31. A Division Bench of this Court in Jagannath Prasad and others v. Commissioner of Income Tax, Lucknow and others, 1978 UPTC 296, observed that satisfaction of the Court contemplated by Rule is objective satisfaction and as such relevant material must exist on record to justify the conclusion by the Court. In para 3 of the judgment the Court said: “Before action under Rule 20 can be taken two conditions must exist, one, that the Court has 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.” 32. In M/S Satish Construction Company v. Allahabad Bank, AIR 1999 MP 21 , an order of service of summons through publication in newspaper was passed and thereafter an ex parte decree resulted in absence of defence. The satisfaction that the defendant is avoiding service was not recorded by the trial Court. The order was held to be not consistent with Order V Rule 20 and the ex parte decree, therefore, is also illegal and liable to be set aside. The satisfaction that the defendant is avoiding service was not recorded by the trial Court. The order was held to be not consistent with Order V Rule 20 and the ex parte decree, therefore, is also illegal and liable to be set aside. Same is the view expressed by Delhi High Court in R.K. Sharma v. Ashok Nagar Welfare Association and Co., 2002(1) Civ LJ 271 : AIR 2001 Del 272 (DB) 33. Recently Madras High Court in P. Baskaran v. Ayyakannu Chettiar, AIR 2009 Mad. 114, has said that the reasons for substituted service may not be mentioned in the order but satisfaction as contemplated in Rule 20 must be explicit meaning thereby that some material has to be there to satisfy the requirement of Rule 20 before resorting for substituted service. 34. In the entire writ petition it has not been disclosed by the petitioner as to when the alleged registered cover was returned with the endorsement “not claimed”. The copy of the order dated 14.8.1995 said to have been passed by the Court below for substituted service is also not record. The trial Court in its ex parte judgment dated 22.1.1996 nowhere has said when such summons were returned or in what manner they were served upon the defendant. It only refers to the fact that the summons deemed served by publication yet the defendant had not appeared and, therefore, the suit proceeded ex parte. Even while hearing the matter ex parte it has not discussed anything as to whether the claim of plaintiff is liable to be accepted but simply by observing that it has not been opposed it has decreed the suit. In the objections filed by petitioner to the restoration application of defendant respondent, it is said in para 4 that summons were issued to defendant by registered post several times but every time it was refused by him whereafter the Court below passed order for substituted service by publication and hence, the publication in newspaper Dainik Doon Darpan on 30.9.1995 was given. During the course of argument learned counsel for the petitioners could not lay his hand as to when summons on several occasion by registered post were sent to the defendant. Except only one occasion when after registering the suit, summons were issued no other registered post is shown to have been sent to defendant. During the course of argument learned counsel for the petitioners could not lay his hand as to when summons on several occasion by registered post were sent to the defendant. Except only one occasion when after registering the suit, summons were issued no other registered post is shown to have been sent to defendant. Even regarding the solitary occasion, he could not inform the Court when exactly the said registered post was received undelivered in the trial Court. He was not even sure that the said undelivered registered letter was available on the date of passing of order for publication, i.e. 14.8.1995. He however, drew my attention to trial Court’s order dated 18.8.1998 wherein it is mentioned that the registered letter was received unserved with endorsement “not claimed” but I find that the endorsement mentioned therein actually reads “Not claimed. No such person refer sender”. This entire endorsement if I read and presume that undelivered register post was available on 14.8.1995 before the trial Court, the postal endorsement only mentions non-finding of the addressee and not that the addressee refused to accept summons. In the circumstances, there was neither any occasion nor as a matter of fact, the Court below was justified in passing order for substituted service probably for this reason it failed to mention its satisfaction that the defendant is avoiding service of summons and by normal mode and service cannot be effected upon him. 35. In my view, the lower appellate Court, therefore, has taken correct view that order of substituted service was made in the teeth of conditions precedent contemplated under Order V Rule 20 CPC, hence restoration application filed by defendant had to be allowed and the suit deserved to be heard on merits. The manner in which suit had been decreed ex parte by trial Court speaks of volume. This is not a matter wherein defendant would have been benefited by absenting himself and giving a go by to such a big property at throw away price to the petitioners while on the contrary, the petitioners were benefited in a huge way by getting the suit one or the other way decreed. This is not a matter wherein defendant would have been benefited by absenting himself and giving a go by to such a big property at throw away price to the petitioners while on the contrary, the petitioners were benefited in a huge way by getting the suit one or the other way decreed. I need not make any further observation in this regard and suffice it to mention that in totality of circumstances, I find that the suit has rightly been directed to be restored to its original number and to be decided on merits after permitting the defendant respondent to file written statement and contest the suit on merits. Substantial justice has been done and, therefore, in extraordinary equitable jurisdiction under Article 226 of Constitution of India, I do not find any reason to interfere with the impugned order. 36. The writ petition is dismissed with costs which is quantified as Rs. Fifty Thousand only. —————