Manjit Singh vs Baldev Singh And Others
2022 Latest Caselaw 15464 P&H

113
      IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                              CHANDIGARH



                                    Civil Revision No.7081 of 2019 (O&M)
                                    DATE OF DECISION : 01.12.2022



Manjit Singh                                                    .....Petitioner

                                    versus

Baldev Singh and Others                                         .....Respondents


CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


Present :    Mr. T.P.S. Tung, Advocate for the petitioner
                   ..

ALKA SARIN, J. (Oral):

CM-7174-CII-2022

This is an application for restoration of the main case which

was dismissed for non-prosecution on 25.05.2022.

For the reasons stated in the application, the same is allowed

and the revision petition is restored to its original number.

CR-7081-2019

The present revision petition under Article 227 of the

Constitution of India has been filed challenging the order dated 02.07.2019

allowing an application under Order 9 Rule 13 of the Code of Civil

Procedure, 1908 (CPC) filed by the defendant-respondents.

The brief facts relevant to the present lis are that the plaintiff-

petitioner filed a suit for permanent injunction for restraining the

defendant-respondents from interfering in the possession of the plaintiff-

petitioner or dispossessing the plaintiff-petitioner or passing any passage or

encroaching upon any part or portion of the land measuring 17 kanals - 3

marlas as described in the headnote of the plaint.

The defendant-respondents appeared and filed their counter-

claim and thereafter when the case was fixed for the evidence of the

plaintiff-petitioner on 23.07.2014, the suit was dismissed in default.

Thereafter, the plaintiff-petitioner filed an application for restoration on

27.08.2014 after the period of limitation had expired. On 03.12.2014,

notice was issued to the respondents for 06.02.2015. On 06.02.2015, it was

noticed in the order that summons issued to the defendant-respondents had

been received back with the report that the address of the defendant-

respondent was incorrect. The plaintiff-petitioner was directed to file

correct address within a period of seven days and the defendant-respondent

was summoned for 27.04.2015. On 27.04.2015 the following order was

passed :

"As reported by Ahlmad, summons issued to

respondent not issued as applicant has not furnish (sic)

the correct address. I found it proper that the service

of respondent through ordinary process cannot be

effected. So, he be summoned through publication in

the daily newspaper 'Chardi Kalan'. Applicant is

directed to deposit the publication fee within 7 days for

25.5.2015. Subject to last opportunity. No further

opportunity shall be granted."

Since after the publication none had appeared for the

defendant-respondents, ex parte judgment and decree dated 11.07.2016

was passed against the defendant-respondents. The defendant-respondents

thereafter are stated to have filed a civil suit against the plaintiff-petitioner

herein. At that time, they learnt about the passing of the ex parte judgment

and decree dated 11.07.2016. The defendant-respondents thereafter filed an

application under Order 9 Rule 13 CPC for setting aside the ex parte

judgment and decree dated 11.07.2016. The same was contested by the

plaintiff-petitioner and vide the impugned order dated 02.07.2019 the said

application was allowed. Aggrieved by the said order, the present revision

petition has been preferred by the plaintiff-petitioner.

Learned counsel for the plaintiff-petitioner would contend that

the application has wrongly been allowed in as much as the defendant-

respondents stood duly served by way of publication.

Heard.

In the present case, a perusal of the record reveals that on

06.02.2015 the plaintiff-petitioner was directed to file correct addresses of

the defendant-respondents. On the next date i.e. 27.04.2015, since the

correct addresses were not furnished, the Court noted that the defendant-

respondent could not be served through the ordinary process and hence

service by way of publication was ordered.

In the present case, the provisions of Order V CPC have not

been complied with. None of the processes as enumerated under Order V

CPC were followed by the Court concerned before ordering substituted

service. In fact, the plaintiff-petitioner was directed to file the correct

address and he chose not to and the Court immediately ordered for

substituted service by recording that the defendant-respondent could not be

served by ordinary process.

Order V, Rule 20 CPC 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.

(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.

(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."

Substituted service cannot be ordered except when 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. In the present case, as is

apparent from the orders passed by the Court concerned, no efforts were

made to serve the defendant-respondents by way of ordinary process.

Hence, there is no question of any satisfaction or reason to believe that the

defendant-respondents were keeping out of the way for the purpose of

avoiding service.

In view of the above, I do not find any illegality or infirmity in

the impugned order. The revision petition is accordingly dismissed.

Pending applications, if any, also stand disposed off.

01.12.2022                                                     (ALKA SARIN)
parkash                                                           JUDGE


                    NOTE:
                     Whether speaking/non-speaking: Speaking
                     Whether reportable: YES/NO