- (1.) THIS second appeal arises out of a suit filed by plaintiff-respon dent for cancellation of a decree passed by the Revenue Court on the ground that the said decree was obtained by the defendant-appellant under fraud which prevented the plaintiff-respondent from coming to know of that decree. The suit was dismissed by the trial Court but decreed by the lower appel late court. Hence this second appeal.
(2.) THE relevant facts were that the appellant filed a suit under Section 59 of the U. P. Tenancy Act in the Revenue Court against the appellant for a declaration that he had acquired hereditary tenancy rights in a plot under Section 180 (2) of the said Act. Summons of that suit was issued to the res pondent but the same could not be served on him personally. The appellant then applied that substituted service may be effected on him under Order V, Rule 20, Civil Procedure Code. The Revenue Court .allowed that ap plication and directed that service shall be effected by beat of drum in the locality in which the respondent resided and also by affixation of the summons at some conspi cuous place in the Court. It was done ac cordingly. Even after that the respondent did not put in appearance on the date fixed and the suit was decreed ex parte in 1953. In the year 1956 the respondent filed the suit out of which this appeal has arisen alleging that he was prevented from having any information of that suit due to the fraud of the appellant and for that reason he could not contest that suit. He, therefore, wanted that the said dec ree may be cancelled. The only point that was urged in this appeal by the learned counsel for the ap pellant was that the mere fact that the res pondent did not know about the suit as the summons was not duly served on him would not be a sufficient ground to invalidate that decree on the ground of fraud unless it is also proved that the information of the suit was suppressed from the respondent due to the fraud of the appellant In support of thii contention he places reliance on a decision of the Calcutta High Court in Abbasali Bhuiya v. Ram Kanai, AIR 1935 Cal 95 in which it was held that in a suit instituted under Article 95 to set aside a decree obtain ed by fraud or for relief on the ground of fraud, the plaintiff must show that the sum mons was fraudulently suppressed and by fraud of the defendant he was kept ignorant of the decree and mere non-service of sum mons is not sufficient. The lower appellate Court has not up-set the finding of the trial court that on 9-4-1953 the service of sum mons was effected by beat of drum in the locality and by affixation of the summon at some conspicuous place in the court com pound in compliance with an order passed by the court under Order V, Rule 20, Civil Procedure Code what it has observed is that the appellant was not justified in moving an application for substituted service undw Order V, Rule 20, Civil Procedure Code on which this order was passed by the trial court simply because before that only one attempt was made to serve the summons personally on the respondent which was returned by the process server with his report dated 12-11-1952 vide Ex. A-3. There is no requirement of law that an order under Order V, Rule 20, Civil Procedure Code could be passed by a court only after more than one unsuccessful attempt had been made to serve the summons personally on the defendant. All that this rule requires is that the court may order substituted service when it is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other rea son the summons cannot be served in the ordinary way. On behalf of the appellant it is contended that it is also not factually cor rect that prior to this order of substituted service only one attempt was made to effect personal service on the defendant. He points out that prior to November, 1952 one more fruitless attempt was made in that direction and another fruitless attempt was made after November, 1952 and before the application for substituted service was made. There is no document on record in respect of those two other unsuccessful attempts. The appel lant had of course stated in his statement on oath that the summons had been taken by the process server to the house of the res pondent on two occasions in his presence and on each occasion he was told by the respon dent's nephew that the respondent was out of station. Any way, as stated above, there was no such legal requirement that substituted service could not be ordered before more than one attempt had been made to effect personal service and for that reason the order of the court concerned for substituted service does not become illegal much less can it be infer red from that order that it was on account of any fraud practicised by the appellant that this order came in existence.
(3.) THE lower appellate court also con cluded from the report of the process server dated 12-11-1952 that this report had been made by him in collusion with the appellant in order to make ground for him to apply for substituted service under Order V, Rule 20, Civil Procedure Code. This conclusion was also drawn without the support of any evi dence on record. The report of the process erver per se cannot reasonably lead to any fuch inference. If the appellant really want ed his suit to be decreed ex parte and to keep the respondent in ignorance about that suit and for that purpose he had colluded with the process server, he would not have obtain ed JL report of the type of Ex. A-3. In this report it was stated by the process server that he heard that the respondent had gone out for his treatment in a hospital and so the summons was being returned for service by the process server of that beat in which the hospital was situate. Apparently a report of this nature made by a process server was damaging to the cause of the plaintiff as he had to file fresh process fee for getting an other summons issued and then depend on the performance of the other process server or to apply to the court for substituted ser vice with the risk of such prayer being al lowed or disallowed by the court. When ever there is a collusion between the plain tiff and the process server in the matter of getting service effected secretly on the defen dant, an effective report is obtained from him which may persuade the court to hold that the service had been duly made on the de fendant at least by affixation or even perso nally though he had refused to sign the ac knowledgement. The inference drawn from a report like Ex. A-3 that it was made by the process server in collusion with the appellant in order to make ground for him to apply for substituted service is wholly unwarranted and perverse. The learned Civil Judge has not referred to any other piece of evidence, direct or circumstantial from which it may be in ferred that the appellant had practised any fraud for the purpose of suppressing the in formation of the suit on the respondent. At such he was not justified in interfering with the finding recorded by the trial Court and setting aside the decree passed by that court.;