Hori Lal vs Smt. Nanhi Bai
2022 Latest Caselaw 13828 MP

                                                    M.P. No. 5706/2018
                              1

             IN THE HIGH COURT OF MADHYA PRADESH

                         AT JABALPUR
                             BEFORE

     HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI

                   ON THE 27th OF OCTOBER, 2022

                 MISC. PETITION No. 5706 of 2018

  BETWEEN:-
   HORI LAL S/O MAKHANLAL MAHOBE,
   AGED ABOUT 44 YEARS, LONIYA
1. KARBALA,    TEH.   AND   DISTT.
   CHHINDWARA (MADHYA PRADESH)

   DAULAT   RAM   S/O   RAGANNATH
   MANDEKAR, AGED ABOUT 35 YEARS,
2. OCCUPATION: SELF EMPLOYED, R/O
   LONIA KARBALA TAH. AND DISTT.
   CHHINDWARA (MADHYA PRADESH)
                                                   .....PETITIONERS

  (BY SHRI JAIDEEP SIRPURKAR- ADVOCATE)


  AND
   SMT. NANHI BAI, W/O LATE OMKAR
   YADUVANSHI, AGED ABOUT 43 YEARS,
1. R/O BELGAON TAHSIL UMRETH, DISTT.
   CHHINDWARA (MADHYA PRADESH)

   RAJESH S/O LATE OMKAR YADUVANSHI,
   AGED ABOUT 26 YEARS, R/O BELGAON
2. TAHSIL UMRETH, DISTT. CHHINDWARA
   (MADHYA PRADESH)

   SONU S/O LATE OMKAR YADUVANSHI,
   AGED ABOUT 24 YEARS, R/O BELGAON
   TAHSIL UMRETH, DISTT. CHHINDWARA
3.
   (MADHYA PRADESH)
                                                                   M.P. No. 5706/2018
                                       2

4. SMT. BABITA W/O RAJESH, AGED ABOUT
   21 YEARS, R/O BELGAON TAHSIL
   UMRETH,      DISTT.   CHHINDWARA
   (MADHYA PRADESH)

   STATE  OF   M.P   THROUGH   THE
5. COLLECTOR, DISTTRICT CHHINDWARA
   (MADHYA PRADESH)

                                                                .....RESPONDENTS

     (SHRI S.D. GUPTA- ADVOCATE FOR RESPONDENT NO. 1 AND SMT.
     PRIYANKA MISHRA- GOVERNMENT ADVOCATE)


      This petition coming on for admission this day, the court passed the
following:

                                      ORDER

Heard finally with the consent of both the parties.

By filing this present petition, under Article 227 of the Constitution of

India, the petitioners have assailed the legality, validity and propriety of the

order dated 12.10.2018 (Annexure-P/5) passed in Civil Suit No.57-A/2016 by

the Civil Judge Class-I, Parasia, District Chhindwara whereby application filed

by the petitioner under Order 9 Rule 7 of the C.P.C. seeking setting aside ex

parte proceedings against the petitioners have been dismissed.

2. Brief facts leading to filing of this case are that the respondents had filed

a suit seeking declaration to the effect that sale deed dated 09.12.2015 executed

by petitioner No. 1 in favour of petitioner No. 2 is not binding on the M.P. No. 5706/2018

petitioners and also for injunction. The summons of the aforesaid suit were

issued to the petitioners, however, admittedly the summons were not served.

Thereafter, the summons were published in the newspapers and on account of

non-appearance of the petitioners after the paper publication, ex parte

proceedings were taken against the petitioners vide order dated 15.12.2017. On

coming to know about pendency of the civil suit and ex parte proceedings, the

petitioners moved an application under Order 9 Rule 7 of the C.P.C. In the

application, it has been categorically stated that summons were not served upon

the petitioners. The petitioners had no knowledge that they were said to have

been served by substituted service i.e. by way of paper publication. The

respondents in collusion with the process server got a false remark noted on the

service report. On the basis of the aforesaid, prayer for setting aside the ex

parte proceedings against the petitioners have been made.

3. Learned counsel for the petitioners submits that the order impugned is

contrary to the provisions of Order 5 Rule 20 of the C.P.C. He submits that the

Court below without recording its satisfaction and even without directing

affixure of the summons in some conspicuous place in the Court premises,

proceeded ex parte. He further submits that it was mandatory for the Court to

record its satisfaction by applying Order 5, Rule 20 of the C.P.C., therefore, the M.P. No. 5706/2018

proceedings stand vitiated and the application under Order 9 Rule 7 of the

C.P.C. deserves to be allowed.

4. In support of his contention, learned counsel for the petitioners placed

reliance on the judgment passed by the Co-ordinate Bench of this Court in the

case of Satish Construction Company, Bhilai Vs. Allahabad Bank, Durg,

reported in 1999 (1) MPLJ 329, in which it is held that the proceedings did not

show that the Court ever ordered affixure of copy of the summons at some

conspicuous place in the Court premises. The records of Civil Suit did not

show that the summons sent for publication in the newspaper was ever affixed

in some conspicuous place in the Court premises. The trial Court committed

breach of the mandatory provisions of Order 5 Rule 20 of the C.P.C. in

directing publication of the notice. Firstly, since it did not record its satisfaction

and secondly because it did not order affixure of the copy of summons in

conspicuous place in the Court premises. He also placed reliance on the

judgment delivered by the Apex Court in the case of Neerja Realtors Pvt.

Ltd. Vs. Janglu (dead) through L.R., reported in 2018 (3) MPLJ 514, in

which it is held that the Court must apply its mind to requirements of Order 5

Rule 20 of the C.P.C. and its order must indicate due consideration of

provisions contained in it.

M.P. No. 5706/2018

5. Learned counsel for the petitioners had taken this Court through the

ordersheets dated 27.09.2016, 19.10.2016, 27.11.2016 and 05.12.2016. On

perusal of the same, it is seen that the publication in the newspaper was never

affixed in some conspicuous place in the Court premises. Secondly, the trial

Court did not record its satisfaction that there were reasons to believe that the

defendant was keeping out of the way for the purpose of avoiding service or for

other reasons the summons could not be served in the ordinary way. On the

basis of the aforesaid, he prayed that the petition deserves to be allowed.

6. Per contra, Shri S.D. Gupta, learned counsel for respondent No. 1

vehemently opposed the prayer and submits that the petitioners were

deliberately avoiding service of notice, therefore, the trial Court has rightly

come to the conclusion and vide order dated 05.02.2017 proceeded ex parte

against the petitioners/defendants and as such no interference is called for. The

petitioners have filed the application under Order 9 Rule 7 of the C.P.C. only

with the purpose to delay the trial. On the basis of the aforesaid, he prayed that

the petition deserves to be dismissed.

7. Heard learned counsel for the parties and perused the record.

8. Order 5, Rule 20(1) provides that 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 M.P. No. 5706/2018

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 premises, and on the

house where the defendant is known to have last resided. Sub-rule 1(A)

provides that where the Court acting under Sub-rule (1) orders service by an

advertisement in a newspaper, it has to be a daily newspaper circulated in the

locality in which the defendant is last known to have actually and voluntarily

resided.

9. The provisions are two fold. According to Sub-rule (1) the Court has to

record its satisfaction that there were reasons to believe that the defendant was

keeping out of the way for the purpose of avoiding service or in the alternative,

the Court is required to record its satisfaction that for any other reasons the

summons could not be served in the ordinary way. Proceedings recorded in the

suit only read that the plaintiff moved an application under Order 5, Rule 20,

C.P.C. with an affidavit for effecting service by publication. The Court without

recording its satisfaction allowed the application. It also directed that the

summons be published in daily newspaper 'Dainik Bhaskar'. The Court below

has failed to record its satisfaction though it was mandatory for it under the

law. Unless, the Court is satisfied that there were reasons to believe that the

defendant was keeping out of the way for the purpose of avoiding service or

that for any other reasons the summons cannot be served in the ordinary way, it M.P. No. 5706/2018

could not order service by any other mode. Not only this, according to Rule 20

of Order 5 the Court is duty bound to order that summons be served by affixing

a copy thereof in some conspicuous place in the Court premises and by

publication of the same in some daily newspaper. The proceedings do not show

that the Court ever ordered affixure of copy of the summons at some

conspicuous place in the Court premises. The trial Court committed breach of

the mandatory provisions of Order 5, Rule 20 in directing publication of the

notice. Firstly, because it did not records its satisfaction and secondly because

it did not order affixure of the copy of summons in conspicuous place in the

Court premises. It is trite law that service would be deemed to be valid if the

order preceding the service is in accordance with law. It is not, only the service

which is required to be proved but the party relying upon the substituted

service has to prove that the order directing substituting service was also in

accordance with law. The trial Court, in the opinion of this Court, was not

justified in rejecting the application under Order 9 Rule 7 of the C.P.C.

10. In view of the aforesaid, the impugned order dated 12.10.2018 is hereby

set aside. The application filed by the petitioners under Order 9 Rule 7 of the

C.P.C. is allowed subject to payment of cost of Rs.2,000/- to the respondents

herein. Since, both the parties are present before this Court, therefore, they are

directed to appear before the trial Court on 14.11.2022 and no further notice M.P. No. 5706/2018

would be necessary. The trial Court is directed to allow the petitioners to

participate in the proceedings in accordance with law.

11. The petition stands allowed to the extent indicated herein above.

(S.A. DHARMADHIKARI) JUDGE ashish Digitally signed by ASHISH KUMAR LILHARE Date: 2022.10.29 12:34:38 +05'30'