PRAFULLA CHANDRA DEO Vs. SATYANARAYAN CHANDRA DEO

JUDGEMENT

(1.) THE short but interesting question that arises in this appeal is whether where summons in a suit has not been served on a defendant but he has appeared through counsel in a Misc. Case in the suit and has contested the same but yet does not appear in the suit, it can be decreed ex parte against him. The respondent No. 1 filed a suit for partition in which, the appellant, his brother figured as defendant No. 5. Summons issued against the appellant returned unserved several times. Since summons was also being returned unserved against other defendants, an order was passed by the Subordinate Judge, on 7 -1 -1983 directing the respondent No. 1 to take out substituted service against the defendant No. 7 by way of publication in some English newspapers circulated daily at Lucknow. On 13 -1 -1983 the Court noticed that the appellant and the defendant Nos. 1, 2, 3 and 4 had not appeared and that summons against them had not been served and hence allowed time till 22 -1 -1983 to take steps. On 27 -1 -1983 the draft filed by the respondent No. 1 regarding the newspaper publication was approved directing to publish in the newspapers circulated in Nepal, Dhenkanal and Lucknow. On 6 -7 -1983 the copy of the publication published in Amrita Bazar Patrika was accepted as sufficient service against the appellant and the other defendants and they were set ex parte. In the meantime in Misc. Case No. 110 of 1978 filed under Order 39, Rule 1, Code of Civil Procedure, the appellant had appeared on 5 -10 -1978 and on 3 -11 -1978 and had received the copy of the Misc. Case petition. On 9 -11 -1978 the learned counsel for the appellant asked for a copy of the plaint and it was served on him. Thereafter he took time to file objections but ultimately having failed to file the same, the interim order was made absolute on 12 -2 -1979. The suit was decreed ex parte. An application under Order 9, Rule 13, Code of Civil Procedure was filed to set aside the ex parte decree. The application was rejected with the learned Subordinate Judge taking the view that the appellant having appeared in the Misc. Case had notice of the suit and hence had been rightly set ex parte and that further the Amrita Bazar Patrika is a paper which is also circulated in the locality and hence is a local paper and as such the acceptance of the service as sufficient on 6 -7 -1983 was proper. The present appeal is directed against such order.

(2.) MR . M.N. Das, the learned counsel appearing for the appellant, has urged that unless end until the service of summons has been made the mere appearance in the Misc. Case would at best amount to a knowledge of the defendant of the suit having not been instituted but such knowledge atone would not be sufficient to do away with the necessity of summons to be served On such basis it is argued that since admittedly a summons was not served, the order setting ex parte the appellant was bad in law. As a second limb of submission it is submitted that so far as Order 5. Rule 20, Code of Civil Procedure is concerned, the publication is required to be made in one of the local newspapers, but Amrita Bazar Patrika cannot be characterised as such a piper.

(3.) THE next question that remains is whether the provisions of Order 5, Rule 20, Code of Civil Procedure can be taken to have been complied with so far as the appellant is concerned. Undoubtedly the requirement of the provision is that when service is ordered to be done through an advertisement in a newspaper, it shall be a newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided. The address of the appellant as given in the plaint was Rairakhol town which at best can be called a semi -urban area. Amrita Bazar Patrika cannot be said to be daily circulated so widely in the locality that a publication in the same would bring in the presumption of knowledge of the appellant. It is ideal in such circumstances that the publication should be made in some local newspaper preferably in the language of the State so that an appropriate presumption could be drawn.