TMI Blog2018 (8) TMI 1888X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt shall be effectual as if it was made on the defendant personally. Thus, it lays down the deeming fiction. However, the plaintiff can ask for substituted service after complying with the requirement of Order 5 Rule 17 of the Code of Civil Procedure. If a person refuses to give the acknowledgment and if at all with all due and reasonable diligence, the defendant is not found, then it is mandatory on the service officer to affix the copy of the summons on the outer door or some other conspicuous part of the house where the defendant ordinarily resides. Ex-parte order st aside - the suit is restored to its original file - petition dismissed. - Writ Petition No. 4217 of 2018 - - - Dated:- 7-8-2018 - Mridula Bhatkar, J. For the Appellant : Nikhil Sakhardande i/b. Pralhad D. Paranjape and Shubhra Paranjape, Advocate For the Respondent : Ashok B. Tajane, Advocate JUDGMENT Mridula Bhatkar, J. 1. Rule. Rule made returnable forthwith. By consent of both the parties, the Writ Petition is heard finally at the stage of admission. 2. This Writ Petition is directed against the order dated 13th November, 2017 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises . He further pointed out that the learned District Judge gave wrong reasoning that the plaintiffs did not prove that the newspaper was affixed like summons under Order 5 Rule 20 of the Code of Civil Procedure on the conspicuous place of the last known address, it cannot be construed to be a valid service. The learned counsel submitted that this erroneous reasoning and the order of the learned District Judge should go and the order passed by the learned trial Judge is to be restored. He has submitted that so far as service of summons is concerned, there was satisfactory compliance of Order 5 Rule 20 of the Code of Civil Procedure. The learned counsel has further submitted that the order passing ex-parte decree not necessarily to be set aside, as a routine. When after considering the evidence of the plaintiffs and the documents on record, the judgment is delivered, then it is as good as a judgment on merits. In support of his submissions, the learned counsel relied on the following judgments of the Hon'ble Supreme Court: (i) International Woollen Mills vs. Standard Wool (U.K.) Ltd., reported in (2001) 5 SCC 265. (ii) On the point of substitute service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder on the ground that there is no good service. Under Rule 13, if the Court is satisfied that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make the order of setting aside the decree. Thus, the satisfaction of the Court should be on the point that the summons was not duly served. For the purpose of satisfaction, one needs to see the proper compliance of service of summons under Order 5 Rule 17 and Rule 20 of the Code of Civil Procedure. 7. When a suit is filed by the plaintiff, respondent should be served. Various modes of service including through bailiff are laid down in Order 5. Rule 17 of Order 5 states the procedure of service when the defendant refused to accept service or cannot be found. Under Rule 19, the Court may call upon the serving officer, i.e., bailiff to lead evidence on the point of service. In the case of Shashikant s/o. Eknath Choudhari (supra), the learned Single Judge of this Court has held that if it is necessary, then the trial Court to examine the serving officer on oath regarding the service of summons on the defendant. That is one method o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n business; (ii) personally worked for gain; (iii) or in such other manner as the Court thinks fit. 12. Thus, in sub-rule (i) and (ii), the substituted service means fixing the copies of the summons on different place as mentioned in the Rule. However, the sub-rule (iii) gives further option that the summons can be served in such other manner as the Court thinks fit. Thus, the manner which the Court opts for should be akin to the earlier mode of service, which is mentioned in the Rule. For this, the Court can take into account the modern ways of service which are available due to internet connection. It can be served also by courier or by email or by whatsapp etc. The Court should be satisfied about such service. Rule 1A gives a specific option to the Court to serve the defendant by an advertisement or notice in the newspaper which should be daily newspaper circulated in the locality whether it was known to have actually or voluntarily residing or carrying out business. The phrase used in Rule 1A where the Court acting under sub-rule (1) contemplates when the Court passes the order of service by publication, in fact the court is using the powers by choo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing decree, then it would be duty of the Court to exercise jurisdiction under Order 9 Rule 13 of the Code of Civil Procedure. 16. Thus, the Court can also go for service of publication and once it is published, then sub-rule (2) of Rule 20 will be attracted, which states the effect of substituted service, i.e., substituted service by order of Court shall be effectual as if it was made on the defendant personally. Thus, it lays down the deeming fiction. However, the plaintiff can ask for substituted service after complying with the requirement of Order 5 Rule 17 of the Code of Civil Procedure. If a person refuses to give the acknowledgment and if at all with all due and reasonable diligence, the defendant is not found, then it is mandatory on the service officer to affix the copy of the summons on the outer door or some other conspicuous part of the house where the defendant ordinarily resides. 17. In the case of Neerja Realtors Pvt. Ltd. (supra), a suit was filed by the appellant for specific performance. On two occasions, the summons was returned unserved and thereafter bailiff submitted the report stating that when he went to serve the defendant, he was informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. 19. Under Order IX Rule 13 while setting aside the decree, if the party satisfies the Court that the summons was duly served or that the party was prevented by any sufficient cause from appearing, the Court shall pass the order of setting aside the decree. Thus, Order IX Rule 13 contemplates the true two situations. 20. For ex parte order, two remedies are available- (i) To file First Appeal challenging the ex parte decree; (ii) to file an Application for setting aside ex parte order under Order 9 Rule 13. 21. The defendant can file both the proceedings simultaneously, however, if the Appeal is dismissed, then the ex parte decree will merge with the order of Appellate Court and the Application under Order 9 Rule 13 will not be maintainable. If the Application under Order 9 Rule 13 is dismissed, then the order can be challenged in Appeal under Order 43 Rule 1. But if the Appeal is dismissed, then it cannot be challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X
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