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TMI Blog2018 (1) TMI 1536X X X X Extracts X X X X X X X X Extracts X X X X ..... sion) at Nagpur which had decreed a suit for specific performance instituted by the Appellant, ex-parte. 3. The subject matter of the suit for specific performance is an agreement dated 15 July 2006 entered into by the Appellant with the original Defendant in respect of agricultural land admeasuring 1.66 Hectares (4.07 acres) situated in Mauza-Sondapar, Tahsil Hingna, District Nagpur. The total consideration payable under the agreement was Rs. 13,04,391 out of which an amount of Rs. 3,26,000 was recorded to have been paid. The balance of Rs. 9,78,391 was to be paid at the time of the execution of the sale deed. 4. On 30 June 2007, Shobha, who is the daughter of the original Respondent instituted a suit (Old Regular Suit No. 726/2007 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were returned since the Defendant was not residing at the address given therein. 6. The Appellant filed an application for substituted service Under Order V Rule 20(1-A) of the Code of Civil Procedure on 2 September 2011. The Trial Court allowed the application on the same day in terms of the following order: Issue S/S to deft. Under Order 5 Rule 29(1-A) of Code of Civil Procedure at the expense of the Plaintiff. 7. The Appellant claims to have effected substituted service by publication in the Marathi daily Lokmat. On 29 November 2011, the Trial Court passed the following order: Deft. served on public notice in daily news paper Lokmat on 04.10.2011 but he remained absent. Suit proceeded ex parte against the Defendant. Suit proceeded e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough the bailiff, the summons were not sent to the Defendant at the address furnished by the Plaintiff by registered post, with acknowledgment due. The High Court also found that the Trial Judge had ignored the provisions of Chapter III of the Civil Manual issued by the High Court on the Appellate side for guidance of Civil Courts and officers subordinate to it. 12. On behalf of the Appellant, it has been submitted that the High Court has misconstrued the provisions of Order V Rule 20. According to the Appellant, Order V Rule 20 allows an option to either affix the notice at the court premises coupled with affixation at the home of the Defendant or by any other mode including publication in a newspaper. In the present case, service of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonable diligence, cannot find the Defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the Defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubordinate to it. Paragraphs 33 to 36 of Chapter III are extracted below: 33. In addition to the service to be effected through a bailiff, a summons may also be sent to the Defendant, to the address given by the Plaintiff, by registered post, prepaid for acknowledgement, provided there is a regular daily postal service at such place. 34. Rules as to service of summons are contained in Rules 9 to 30 of Order V. Care should be taken to see that bailiffs follow those Rules as well as the instructions given in the Bailiffs' Manual. 35. It is the duty of the serving officer to follow the procedure and take all the steps laid down in Rule 17 of Order V. He has no discretion for not taking the necessary steps, when the conditions laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r really begs the question. There was a clear breach of the procedure prescribed in Order V Rule 17 even antecedent thereto. Besides, the order of the Court does not indicate due application of mind to the requirement of the satisfaction prescribed in the provision. The High Court was, in these circumstances, justified in coming to the conclusion that the ex-parte judgment and order in the suit for specific performance was liable to be set aside. 16. In Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787, a Bench of three Judges of this Court has held that: An appeal against an ex parte decree in terms of Section 96(2) of the Code could be filed on the following grounds: (i) the materials on record brought on record in the ex parte proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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