Judgment P.S. Rana, J. Interim Order Upon OMP No. 4026 of 2013 filed under Order 5 Rule 20 CPC: Plaintiffs Sheel Darshan Sood and others filed civil suit for declaration, specific performance, partition by metes and bound and rendition of accounts relating to three storey building situated at 22 The Mall Shimla HP. In civil suit No. 16 of 2013 present application filed by plaintiffs under Order 5 Rule 20 read with Section 151 CPC for serving defendants No.4, 7 & 8 by way of substituted service. It is pleaded that co-defendants No.4, 7 and 8 namely Shamsher C/o 22 The Mall Shimla 171001, Sh Vijay Kumar Sood son of Sh Balak Ram Sood resident of 27/2 Upper Flat Lower Bazar Shimla-171001 and Sh Jagar Nath C/o 22 The Mall Shimla-171001 have left Shimla long time ago and their whereabouts are not known. It is pleaded that report was submitted by process server that co-defendants No.4 and 8 have either left Shimla or have died. It is further pleaded that present address or legal heirs of co-defendants No. 4 and 8 not mentioned in the report by process server. It is further pleaded that plaintiffs have no reason to believe that c o-defendants No.4 and 8 have died because they have left Shimla in connection with their business long time ago. It is further pleaded that service upon co-defendants No. 4, 7 and 8 be effected under Order 5 Rule 20 of the Code of Civil Procedure 1908 by way of publication in daily News Paper circulated in Himachal Pradesh. 2. Per contra reply filed on behalf of contesting defendants No.1, 3, 9 to 18 pleaded therein that application under Order 5 Rule 20 read with Section 151 CPC is not maintainable. It is pleaded that defendants No. 4 and 8 have died and in order to avoid to bring on record their legal representatives present application has been filed by plaintiffs. It is further pleaded that both Shamsher and Jagar Nath co-defendants No.4 and 8 have left Shimla long time ago to carry on business in the upper regions of Shimla and their whereabouts are not known since more than 40 years. It is pleaded that plaintiffs have themselves admitted in the plaint that co-defendants namely Shamsher and Jagar Nath have left Shimla long time ago. It is pleaded that plaintiffs have themselves admitted in the plaint that co-defendants namely Shamsher and Jagar Nath have left Shimla long time ago. It is further pleaded that co-defendants No.4 and 8 would be legally presumed to be dead as per Section 108 of the Indian Evidence Act 1872. It is further pleaded that as per report of process server placed on record co-defendants No.4 and 8 have died. It is further pleaded that Additional Registrar (Judicial) on dated 3.4.2013 directed plaintiffs to take steps for bringing on record legal representatives of co-defendants No. 4 and 8. It is further pleaded that present Civil Suit has been filed by plaintiffs against dead persons. It is further pleaded that present application filed by plaintiffs for service of dead persons is not permissible under law. Prayer for dismissal of application filed under Order 5 Rule 20 CPC sought. 3. Court heard learned Advocate appearing on behalf of the applicants/plaintiffs and learned Advocate appearing on behalf of non-applicants/defendants and also perused entire records carefully. 4. Following points arise for determination in the present application. 1. Whether framing of issues are essential in the ends of justice in view of material proposition of fact affirmed by one party and denied by other party upon application filed under Order 5 Rule 20 CPC?. 2. Final Order. Finding upon Point No.1. 5. Submission of learned Advocate appearing on behalf of non-applicants/defendants that death certificates of codefendants No.4 and 8 are already placed on record and on this ground application filed under Order 5 Rule 20 CPC be dismissed is rejected being devoid of any force for the reason hereinafter mentioned. It is well settled law that death certificates are not per se admissible and contents of death certificates of Shamsher Chand and Jagar Nath are disputed by the plaintiffs. It is well settled law that documents should be proved by way of primary evidence or by way of secondary evidence as per Indian Evidence Act 1872. Even Photostat copy of death certificate of Jagar Nath placed on record and primary document of death certificate of Jagar Nath not placed on record as required under Section 61 of Indian Evidence Act 1872. Even permission to prove death of Jagar Nath by way of secondary evidence not sought as required under Indian Evidence Act 1872. 6. Even Photostat copy of death certificate of Jagar Nath placed on record and primary document of death certificate of Jagar Nath not placed on record as required under Section 61 of Indian Evidence Act 1872. Even permission to prove death of Jagar Nath by way of secondary evidence not sought as required under Indian Evidence Act 1872. 6. Another submission of learned Advocate appearing on behalf of non-applicants/defendants that in view of the report of process server placed on record relating to co-defendants Shamsher Chand and Jagar Nath application filed under Order 5 Rule 20 CPC be dismissed is also rejected for the reason hereinafter mentioned. Court has carefully perused the report of process server. It is proved on record that the report of process server is written in two different inks with two contradictory reports. In one pen ink process server has submitted report that codefendant No.4 Shamsher and co-defendant No.8 Jagar Nath are not residing at C/o 22, The Mall Shimla HP and in another pen ink process server has submitted report that or co-defendants No.4 and 8 have died long ago. At this stage it is not expedient in the ends of justice to rely upon two contradictory report of process server written with two pen inks. Admittedly the suit property is situated in Urban area number 22 The Mall Shimla process server while submitting his service report relating to service of co- defendants No.4 and 8 relied upon oral statement of Sh Gautam Sood son of contesting co-defendant No.3 Ajay Kumar Sood. Process server did not verify the fact of death of co-defendant No.4 and 8 from ward Commissioner or from any independent person. It is well settled law that issues are to be framed when material proposition of fact is affirmed by one party and denied by other party. See AIR 1994 HP 27 titled Dr. Om Prakash Rawal Vs. Mr. Justice Amrit Lal Bahri. It is well settled law that dead person cannot be served under Order 5 Rule 20 CPC. It is well settled law that only alive person can be served under Order 5 Rule 20 CPC. See AIR 1994 HP 27 titled Dr. Om Prakash Rawal Vs. Mr. Justice Amrit Lal Bahri. It is well settled law that dead person cannot be served under Order 5 Rule 20 CPC. It is well settled law that only alive person can be served under Order 5 Rule 20 CPC. It is held that framing of issue is essential in the present case in order to decide present application properly and effectively and to impart substantial justice inter se parties in view of fact that material proposition of fact is affirmed by one party and denied by other party. Hence following issues are framed upon application filed under Order 5 Rule 20 CPC. 1. Whether co-defendants No.4 and 8 who are not heard for more than seven years are alive as alleged under Section 108 of Indian Evidence Act 1872?. ….Onus placed upon applicants/plaintiffs. 2. Whether applicants/plaintiffs have no cause of action to file application under Order 5 Rule 20 CPC against co-defendants No.4 and 8 who are dead as alleged?. ...Onus placed upon non-applicants/defendants. 3. Relief. Point No.2(Final Order): 7. In view of findings upon point No.1 case be listed for applicants/plaintiffs evidence upon application filed under Order 5 Rule 20 CPC. The date for recording of applicants/plaintiffs evidence upon application filed under Order 5 Rule 20 CPC will be fixed by Additional Registrar Judicial. It is further ordered that statement of process server who has submitted service report relating to service of co-defendants No. 4 and 8 will also be recorded in the ends of justice. It is further ordered that process server will be examined under Order 5 Rule 19 CPC on oath touching his proceedings in the ends of justice. It is further ordered that till recording of entire evidence of both parties application filed under Order 5 Rule 20 CPC shall remain in abeyance and after recording of entire evidence of both parties same will be disposed of in accordance with law. Ordered accordingly.