Punjab-Haryana High Court
Smt. Ishro vs Sarmukh Singh And Ors. on 23 November, 1989
Equivalent citations: (1990)97PLR324
JUDGMENT N.C. Jain, J.
1. This revision petition has been directed against the orders of the Courts below refusirg to set aside an ex-parte decree passed in favour of the plaintiff-respondents.
2. The facts of the case are that the plaintiff-respondents filed the suit on 29-12-1970 which was orderd to be registered and the petitioner was summoned for 22-2-1971. On 22-2-1971, the Presiding Officer happened to be on leave and the case was posted for proper orders for 26-6-1971. On 26-2-l971, the defendant was ordered to be summoned for 14-4-1971, on which date, the Presiding Officer happened to be out of station and the case was posted for 4-5-1971 for proper orders On 4-5-1971, the Presiding Officer again happened to be on leave and the case was posted for 26-5-1971 for proper orders. On 26-5-1971, notice was ordered to be issued to the defendant for 6-7-1971 on payment of process fee and deposit of registered envelope. On 6-7-1971, the summons were not received served or unserved and fresh order for issuance of summons for 23-8-1971 was passed. On the aforesaid date i.e. 23-8-1971, the registered envelope was received with the report that the defendant was not available at her house. Upon the aforesaid report, the Court felt satisfied that the defendant could not be served in the ordinary course of process and, therefore, she should be summoned by way of publication in Ekta Sandesh of Hindi Weekly of Delhi. The publication was accordingly made. After few dates when the publication was got done, an ex parte decree was ultimately passed on 20-10-1972. The application for setting aside the ex parte decree was filed on 18-11-1972, i.e within time. The application having been dismissed by both the Courts below the petitioner-defendant has come up in revision petition before this Court.
3. Mr. N. B. S. Gujral, the learned counsel for the petitioner has vehemently argued that even a gist of various proceedings reproduced in para No. 10 of the order of the appellate Court does not show that a case for substituted service was made out and that there was any refusal on the part of the petitioner. Before appreciating the contention, it is necessary to reproduce the gist of the proceedings before the trial Court which are as under :-
"Plaintiff filed the suit on 29-12-1970. It was ordered that the case be registered and the defendant be summoned for 22-2-1971. On 22-2-1971, the Presiding Officer happened to be on leave and the case was posted for proper order for 26-2-1971. On 26-2-1971 it was ordered that the defendant be summoned for 14-4-1971. Again on 14-4-1971, the Presiding Officer happened to be cut of station and the case was posted for 4-5-1971 for proper orders. On 4-5-1971 the Presiding officer was again on leave and the case was posted for 26-5-1971 for proper order. On 26-5-1971 it was ordered that notice be issued to the defendant for 6-7-1971 on payment of P.F. and depositing of registered envelope. On 6-7-1971 the summons had not been received back served or unserved and it was ordered that fresh summons be issued for 23-8-1971, the registered envelope had been received back with the report that the defendant was not available at her house. It was thus ordered that the Court was satisfied that the defendant could not be served in the ordinary course of process and as such substituted service through publication in Ekta Sandesh, a Hindi Weekly of Delhi be made. The publication was not received back on 9-11-1971 and as such fresh publication was ordered for 20-12-1971 Again the publication was not issued and it was ordered that fresh publication be issued for 2-2-1972. This process regarding the issuance of fresh publication was not issued upto 15 6)972. It was on 16-8-1972 that the publication was reccived back and it was ordered that the defendant be; proceeded against ex parte and the case was posted for 19-10 1972 for the recording of the ex parte evidence of the plaintiff. Ex parte evidence was recorded on 19-10-1972 and the case was posted for consideration 20-10-1972. Consequently, the ex parte decree was passed on 20-10-1972."
4. Straightaway it can be observed unhesitatingly that no care for substituted service was made out when on the relevant date the report on the registered envelope indicated that the defendant was not available at her house No finding has been recorded that on presentation of the summons, the petitioner went underground and tried to evade service. Rather the report in the registered envelope, as has been noticed above, was that the defendant was not available at hit house. The appellate Court has made much to much capital out of two reports wherein the daughter and husband of the petitioner allegedly reported on the summons that the petitioner was not available. From this, it was sought to be concluded that the husband and the daughter were served. I am afraid that no such conclusion can be arrived at simply because the husband and the daughter allegedly reported on the summons that the petitioner was not available. It is not the case of the decree-holder or process server that the summons along with the copy of the plaint were served upon the husband and daughter of the petitioner or they knew of the next date of hearing and the name of the Court where the petitioner was supposed to appear In view thereof, this Court is of the considered view that no case for effecting substituted service was made out
5. As regards substituted service, much can be observed. The basic object of effecting substituted service in the news paper is that the person sought to be served should ordinarily come to know of the pendency of the litigation either himself or herself or through relations or friends and it is for this precise reason that insertion is ordinarily made in such a newspaper which has got circulation in the area where a parson sought to be served ordinarily resides. In the plaint, the petitioner was stated to be residing in Manimajra, It is not disputed before me that Ekta Sandesh a Hindi Weekly of Delhi is on approved list of the High Court for Delhi and Haryana. Manimajra falls in Union Territory, Chandigarh. Even otherwise it would have been more appropriate if the trial Court had thought of giving insertion in a daily news-paper which has got normal circulation in Chandigarh Union Territory. This Court is further of the view that the publication should normally be done in a newspaper which is published daily and not in a weekly newspaper. It appears that keeping in view this under- lined object the legislature in its wisdom ultimately thought it appropriate to amend the provisions of the Code of Civil Procedure and the amended provisions in Order 5, Rule 20(1-A) after amendment of the Code of Civil Procedure in 1976 reads as under : -
"(1-A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, 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."
6. The above, quoted amended provisions in the Code of Civil Procedure, makes it clear that the intention of this legislature is that the substituted service should be made in a daily newspaper and that too in a newspaper which is circulated in the area where the defendant is last known to have actually and normally been residing, carried on business or personally worked for gain. The basic object of making such a provision is that the advertisement in the newspaper should normally be not an exercise in futility and that the defendant should normally know about the pendency of litigation. If the advertisement is given in a newspaper which is published weekly and any paper which does not have circulation in the concerned area, the object of service is Iikely to be frustrated.
7. Keeping in view all the facts and circumstances of the case, this Court is of the view that the ex parts decree deserves to be set aside as the Counts below have acted with illegality and irregularity is not setting a side the ex parte decree, The Courts below had failed to exercise the jurisdiction which vested in them Consequently, this revision petition is allowed, The ex parte decree is set aside on Payment of Rs. 1500/- as costs.
8. Since long time has elapsed when the ex parte decree was passed and it is being set aside after a lapse of little lass then two decades, it would be appropriate to direct the trial Court to proceed with the case as expeditiously as possible. The trial of the case must be concluded within one year from the date of appearance of the parties who are directed to appear through counsel on 21-12-1989.