[ Harbhajan Singh & Anr.
v. L.Rs. of Gardhara Singh, AIR 2010 Raj 170]
In the year 1983, the
respondent/plaintiff filed a suit for specific performance of the contract
against the appellants/defendants. The summons issued by the Court could not be
served in the ordinary course and therefore, on an application preferred on
behalf of the respondent/plaintiff, the service upon the appellants/defendants
was directed to be effected by way of substituted service i.e., by
publication of the summons in the daily newspaper. On publication of the summons
as directed by the Court, the service upon the appellants/defendants was treated
to be complete and since nobody appeared on their behalf when the matter was
called out, ex parte proceedings were ordered against them. Ultimately,
the suit was decreed ex parte.
The appellants/defendants
filed an application under Order IX, Rule 13, CPC for setting aside the ex
parte decree. It was stated therein that at the relevant time, when the suit
was filed, the appellant/defendant Harbhajan Singh was residing at Village
Rodala, Tehsil Ajnala, district Amristar and the appellant/defendant Amritpal
Singh was in defence service, however, the summons were not served upon
them personally.
The Court held that the mode
of substituted service can be resorted to only when the Court is satisfied that
there is reason to believe that the defendant is keeping out of way for the
purpose of avoiding service or that for any other reason, the summons cannot be
served in the ordinary way. The personal service of summons in the ordinary way
is a rule and the substituted service is an exception. Therefore before passing
any order for substituted service on the basis of the material on record, the
Court must be satisfied that the conditions stipulated in O.5, R.20 exists.
However, there is a presumption that service substituted by the order of the
Court shall be as effectual as if it had been made on the defendant personally.
In the instant case the
Court had directed for substituted service upon the defendants by way of
publication in the newspaper on mere asking of the plaintiff without recording
any finding as to in what circumstances the defendants could not be serviced in
the ordinary course. The substituted service being presumptive in nature should
not be resorted to by the Court unless on the basis of the material on record,
it stands satisfied that the defendants are avoiding the service or for any
other reason, the summons cannot be served upon them personally in the ordinary
way. On the facts and in the circumstances of the case, the Court could not have
proceeded to pass an order for substituted service in a casual manner solely on
the basis of the plaintiff’s desire to serve the defendants by substituted
service. Hence service of summons cannot be considered to be sufficient and in
accordance with law. The ex parte order was set aside.
