OUSEPH JOSEPH Vs. POTHEN JOSEPH
HIGH COURT OF KERALA
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(1.) This is a revision petition by the plaintiff against an order setting aside a decree passed ex parte against the 1st defendant on his application under O. 9 R.13, CPC The complaint of the plaintiff is that the court below acted without jurisdiction in the circumstances.
(2.) The summons in the case was issued twice in October and December 1952. On both the occasions the peons returned the same with the endorsement that the defendant had left his house and was residing at Kadakkavoor. Then publication was made in a newspaper which had circulation at Kadakkavoor and on the defendants non appearance on the date fixed he was declared ex parte and the suit decreed on 25th May 1953. The application under O.9 R.13, CPC was made on 7th July 1954 alleging knowledge of the decree only about 3 days previously on 4th July 1954. The 1st defendant had examined himself and sworn that he had never resided at Kadakkavoor and that he was not aware of the publication in the newspaper and came to know of the decree on the date alleged by the execution notice in the case. The neighbour of the defendant also was examined to show that he had been residing in some other house and not at Kadakkavoor for the past several years. The Trial Court found that there was no evidence that the defendant was aware of the publication, that in fact the plaintiff had misled the court to get substituted service under O. 5, R. 20 CPC when the circumstances did not warrant the same and accordingly disallowed the objection of the plaintiff and allowed the petition to restore the suit. Learned counsel for the plaintiff urges that substituted service must be deemed to be due service within the meaning of O.9 R.13 CPC as well as Art. 164 of the Limitation Act, and that it ought to be held that there had been legal and proper service and that the application was barred by time. A reading of O. 5, R. 20 CPC shows that before ordering substituted service the court should be satisfied that the conditions on which alone it can be ordered exist viz., that the defendant is keeping out of the way to avoid service or that for any other reason service cannot be effected in the ordinary way. The non fulfilment of the condition necessary before an order under this rule can be passed is a material irregularity and an ex parte decree passed on such service being accepted as sufficient will have to be set aside on an application under O.9 R.13 CPC. No doubt the advisability of effecting substituted service is a matter primarily for the Trial Court, but the defendant is entitled to show that the circumstances justifying the order for such service did not exist, that is to say, he can show that he was not keeping out of the way for the purpose of avoiding service. It is open to him to show that substituted service was improperly obtained or that it was defective. See Ashique Hussain v. Lachhmi Narain (AIR 1940 Oudh 81) and also Kadar Mull v. Wazifunnessa ( AIR 1934 Cal. 745 ). In this case after the return of the summons showing that defendant was not seen at the address mentioned, it was the duty of the plaintiff to find out the actual residence of the defendants and attempt to serve the summons at the actual address or if he was sure that the endorsement of the peons on the summons was incorrect he ought to have applied for service again at the same address. On the other hand, he applied for publication and that at the original address stated in the plaint. All that sub-r. 2 of R. 20 means is only that service substituted by order of court shall be as effectual as personal service, i.e. effectual for the purpose of enabling the court to proceed with the suit. As observed in Mullas Civil Procedure Code:-
The words do not necessarily mean that the summons has been duly served, but only that such service is as effectual as personal service for the purpose of going on with the proceedings in court; and in spite of such service it is open to the defendant to show that he had no knowledge of the claim.
(3.) As to whether substituted service under this rule is due service within the meaning of Art.164 of the Limitation Act so as to make time for an application to set aside and ex parte decree passed after such service run from the date of the decree or from the date of the defendants knowledge of the decree, it is to be held that substituted service cannot always be deemed to be due service within the meaning of Art. 164 of the Limitation Act. Due service within the meaning of the Article is not service which is technically and formally correct as basis for proceeding ex parte but service which has been effective and which has achieved the object of service by bringing the claim against him to the knowledge of the defendant. See Bashyam v. Parthassarathi ( AIR 1954 Mad. 195 ). The ex parte decree in the case has therefore been properly set aside.;
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