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2019 DIGILAW 1010 (GAU)

Anita Deuri v. Hiranya Bharali

2019-09-09

ACHINTYA MALLA BUJOR BARUA

body2019
JUDGMENT AND ORDER : 1. Heard Mr. S.N. Sarma, learned senior counsel for the petitioners and Mr. Z Mukib, learned counsel for the respondents. 2. The respondent-plaintiffs preferred the Title Suit No. 159 of 2006 against one Namee Boro being the sole defendant for declaration of right, title and interest and also possession over the suit land. One of the daughters of Namee Boro, namely, Anita Deuri took steps on behalf of Namee Boro being her power of attorney holder. 3. In course of the proceeding, the defendant Namee Boro died and the fact was reported to the court by the power of attorney holder Anita Deuri. On the information of death of Namee Boro being provided to the court, respondent-plaintiffs filed an application for substitution of the legal heirs and accordingly, the defendant Nos. 1(2) to 1(4) were substituted. As the defendant 1(1) Anita Deuri was the power of attorney holder of the deceased sole defendant Namee Boro and was already before the court, the notices were required to be issued to the defendant Nos. 1(2) to 1(4). In the process of issuing the notice on the defendant Nos. 1(2) to 1(4), we have a report of the process server dated 11.4.2018, which provides that upon going to the address as provided in respect of defendant Nos. 1(2) to 1(4), the defendants concerned were not found. When it was enquired from the persons staying in and around the given addresses, it was informed that there is no house bearing House No. 286 and that the House No. 283 was the last house. The petitioners now rely upon a communication from the authorities in the Gauhati Municipal Corporation dated 26.4.2003 which prima facie shows that the deceased defendant resided in the House No. 286 and in fact House No. 286 was also given address of the deceased defendant in the plaint. 4. Be that as it may, based upon the aforesaid process server's report dated 11.4.2018, an application was filed by the respondent-plaintiffs under order V, rule 20 of the CPC praying that they be allowed to effect substituted mode of service of summons by way of paper publication. In paragraph 3 of the said application the plaintiffs stated as follows: That, the plaintiffs begs to state that one of the substituted defendants, namely, Smt. Anita (Kakati) Deuri was acting as the attorney of the original defendant, namely, Mrs. In paragraph 3 of the said application the plaintiffs stated as follows: That, the plaintiffs begs to state that one of the substituted defendants, namely, Smt. Anita (Kakati) Deuri was acting as the attorney of the original defendant, namely, Mrs. Namee Boro @ Namee Kakoti and she was taking steps in the instant suit and as such it can be well presumed that she as well as her sibling are having knowledge regarding the pendency of this suit but purposefully are avoiding the service of summons, though the summons were sent at their respective addresses made available by them before this hon'ble Court and in order to avoid any further delay in the matter this petition is filed praying before the hon'ble Court to allow the plaintiffs to go for substituted mode of service of summons under order V, rule 20 of the CPC, 1908, i.e., by way of paper publication.” 5. A reading of the above averments made in paragraph 3 of the application under order V, rule 20 of the CPC would go to show that the respondent-plaintiffs had stated before the court that defendant Nos. 1(1) to 1(4) were purposefully avoiding service of summons, though the summons were sent at their respective addresses. When we examine the said averments made by the respondent-plaintiffs in their application under order V, rule 20 and compare it with the report of the process server, dated 11.4.2018, we take note of that there is a variance between the averments made in the petition and the report of the process server. The process server's report rightly or wrongly states that when he went to effect the service of the summons, he found that the House No. 286, which was the given address of the defendants, was not in existence and, therefore, summons could not be served. The process server not being able to serve the summon in the given address, which according to him was not in existence, and defendants purposefully avoiding the summons would be two separate distinguishable aspects and both cannot be termed to be one and the same. 6. The process server not being able to serve the summon in the given address, which according to him was not in existence, and defendants purposefully avoiding the summons would be two separate distinguishable aspects and both cannot be termed to be one and the same. 6. The learned Civil Judge No. 1, Kamrup (M) by the order, dated 25.6.2018 had allowed the petition of the respondent-plaintiffs under order V, rule 20 for taking steps by paper publication by arriving at a conclusion that the steps by paper publication be allowed considering the grounds stated in the petition of the respondent-plaintiffs. 7. As already concluded, there is a variance between the statements made in the petition by the respondent-plaintiffs under order V, rule 20 and that of the report of the process server and in view of such variance, it cannot be concluded that the learned Civil Judge No. 1 had arrived at a satisfaction that the defendants were avoiding service or that the summons could not be served in the ordinary way because of some other acceptable reasons. 8. Order V, rule 20 of the CPC is 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 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. A reading of the aforesaid provisions shows that before the power under this rule is exercised and substituted service of summons is ordered, one of the following conditions must be fulfilled to the satisfaction of the court, (i) the defendant is keeping himself away to is avoid service of summons; or (ii) for any other reason, the summons cannot be served in the ordinary way; non-fulfilment of either condition necessary for exercise of power would amount to material irregularity and the order is liable to be set-aside. Before substituted service is ordered, the court must be satisfied that the condition precedent required for exercise of power existed, namely, that the defendant was keeping himself away with a view to avoid service of summons or, for any other reason, summons cannot be served in the ordinary way. The Court should record such finding though recording of reasons may not be necessary.” 9. A bare reading of the provisions of order V, rule 20(1) shows that before going for any other substituted form of notice of service, the court is required to be satisfied that there is a reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reasons the summons could not be served in the ordinary way. Thus, the requirement of recording such satisfaction by the court is a condition precedent before the method of substituted process through paper publication can be resorted. In the instant case as already concluded, no such satisfaction was arrived at by the learned Civil Judge that the defendants concerned were either avoiding the service of notice or that the reason as to why service could not be effected were found to be acceptable to the court. 10. In the present revision petition, the order, dated 5.9.2018 of the learned Civil Judge No. 1, Kamrup (M) in the Title Suit No. 159 of 2006 had been assailed by which it was ordered that the matter be proceeded ex parte. 11. Being aggrieved by the order, dated 5.9.2018, the petitioner-defendants also preferred a Petition No. 5060/2018 under order IX, rule 7 read with section 151, CPC praying for a recall of the order dated 5.9.2018, by which the ex parte proceeding was ordered. By the order of 14.5.2019, the Petition No. 5060/2018 stood rejected on the ground that after the normal mode of service of summons had failed, the court had granted leave to the respondent-plaintiffs to opt for a substituted mode of service by way of paper publication. 12. We take note of that even in the order, dated 14.5.2019, the learned Civil Judge had not gone to the aspect as to whether or not the condition precedent for invoking order V, rule 20(1) had been satisfied in the present case. 13. 12. We take note of that even in the order, dated 14.5.2019, the learned Civil Judge had not gone to the aspect as to whether or not the condition precedent for invoking order V, rule 20(1) had been satisfied in the present case. 13. In view of our conclusion that the condition precedent for invoking order V, rule 20(1) was not satisfied to the effect that the learned Civil Judge No. 1 had not arrived at any satisfaction or that the report of the process server indicated that the defendant Nos. 1(2) to 1(4) were avoiding the service of summons or that for any other acceptable reasons, the summons could not be served upon them, we are of the view that both the orders, dated 5.9.2018 ordering for an ex parte proceeding as well as the order of 14.5.2019 in the Petition No. 5060 of 2018 under order IX, rule 7 refusing to recall the order, dated 5.8.2019 are unsustainable. Accordingly, both the aforesaid orders, dated 5.9.2018 and 14.5.2019 are hereby set aside. 14. As defendant Nos. 1(2) to 1(4) have already appeared before this court by way of preferring the instant revision petition, we provide that no further summons are required to be served on the said defendants. Accordingly, it is provided that both the petitioner-defendants as well as the respondent-plaintiffs along with the defendant No. 1(1) shall appear before the learned Civil Judge No. 1, Kamrup (M) on 30.9.2019 and upon their appearance, the learned Court below shall proceed with the matter from the stage of issuing summons to the defendant Nos. 1(2) to 1(4). As regards the defendant No. 1(1), respondent-plaintiffs shall give an undertaking to inform the defendant No. 1(1) about the date of her appearance. 15. It being a title suit which is pending since 2006, it is also ordered that the learned Civil Judge No. 1 shall make an endeavour to bring a final conclusion to the proceeding within 6 months from the date of appearance of the parties, as ordered herein above. In the event, there is any special or unavoidable circumstances which may require the final consideration to go beyond the period of 6 months, the party concerned shall bring it to the notice of learned Civil Judge No. 1, Kamrup (M) who shall pass appropriate order(s) thereon, after giving a due consideration to any such requirement. 16. In the event, there is any special or unavoidable circumstances which may require the final consideration to go beyond the period of 6 months, the party concerned shall bring it to the notice of learned Civil Judge No. 1, Kamrup (M) who shall pass appropriate order(s) thereon, after giving a due consideration to any such requirement. 16. It is clarified that whatever opportunities, the substituted defendant Nos. 1(2) to 1(4) were entitled to under the law at stage of issuing summons to them, the same shall be provided to them in the proceeding. 17. The learned District Judge, Kamrup (M) shall enquire into the matter as to the service report, dated 11.4.2018 of the process server, namely, Alit Deka, more particularly as to why the process server could not find out the house for which the Gauhati Municipal Corporation had provided with a house number and why he had to enquire from some other people as to whether it existed or not. The enquiry shall also go into the aspect as to why the process server could not actually find out the given address of the defendants and after making the enquiry, if any laches are found on the part of the process server, appropriate action be taken and the report thereof be submitted to the Registry. 18. A copy of this order be also forwarded to the learned District Judge, Kamrup (M) at Guwahati for doing the needful as indicated. 19. The revision petition stands allowed.