B.L.Yadav - (1.) PRESENT petition under Article 226 of the Constitution is directed against the order dated 27-9-1986 passed by the Deputy Director of Consolidation, respondent no. 1 allowing restoration application filed by Mangali, the respondent no. 5 chak holder no. 217 after holding that the service of notice on son, Jai Singh, respondent no. 6, who has a separate chak no. 103 would not be. taken to be sufficient notice on the father who has a separate chak no. 217.
(2.) MR. Satya Prakash, learned counsel for the petitioner urged that notice was served on Jai Singh chak holder no. 103, the son of Mangali who has common interest with his father, hence service of notice on son, was service of notice on the father. The report of the process server (Annexure 4, vide page 24 of the petition) evinces that the notice has been correctly served on the son before witnesses. The father was not available hence there was no justification for restoration as in view of second proviso and third proviso added by U. P. Amendment, the respondent no. 5, (Mangali) could have known about the date fixed, just on the basis of the irregularity in summons no exparte order could be set aside. Attention was drawn particularly to the provisions of Order 5 rule 15 and order 9 rule 13 of the Code of Civil Procedure (for short the Code). It was further urged that an application was filed by the counsel for the opposite parties there, that before deciding the revision an opportunity of hearing may be given to the opposite parties. The revision was decided thereafter on 20th April, 1986 after affording Mangali, respondent, opportunity of being heard, therefore order dated 27th September, 1989 allowing restoration application is manifestly erroneous and deserves to be quashed. Admittedly Mangali and his sons were different opposite parties in revision as well as in this petition. Mangali was chak holder number 217 whereas his son Jai Singh was chak holder no. 103. During consolidation operation concept of Joint Hindu family cannot be imported as between different chak holders unless one chak holder has authorised the other chak holder to be his representative, latter cannot represent former. As Mangali was a party to the revision notice must have been served upon him in accordance with the procedure contemplated under Rule 58 (2) of U. P. Consolidation of Holdings Rules, 1954 (for short the rules) framed under the UP CH Act (for short the Act). Much emphasis was laid by the counsel on the provisions of Order 5 Rule 15 CPC and U. P. Amendment of IInd proviso to Order 9 rule 13 CPC which are set out below : Order 5 Rule 15 Civil Procedure Code "15. Where service may be on adult member of defendant's family: Where in any suit the defendant is absent from his residence at the time when the service of summons 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 he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female who is residing with him." State Amendment Allahabad. Add the following further proviso : "Provided also that no such decree shall be set aside merely on the ground of irregularity in the service of summons if the court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim." Rule 58 (2) of the Rules is set out below: "2. In delivering a document or effecting the service of any document, notice or summons on any tenure holder or other person, the serving officer may, where the tenure holder or the person concerned (his guardian or legal representative) is not present at his residence at the time of delivery of service or, where he cannot be found after using all due and reasonable diligence or where he refuses to take the document, notice or summons, effect delivery or service by affixation of the document notice or summons on the outer door or at some other conspicuous part of the house in which he ordinarily resides, but if he has no such residence, in the unit, by affixing a "copy of the document notice of summons at some place of public resort on or adjacent to the land to which such documents refers. In either case the Serving Officer shall get the affixations attested by two residents of the unit. The service of certificates of compensation shall not however, be made by affixation." There is no quarrel with these salutary principles of law. The difficulty is that provisions of Code of Civil Procedure 1908 do not apply to the consolidation proceedings. Under Section 41 of the Act Chapters IX and X of the U. P. Land Revenue Act apply. The substance, spirit of the provisions of CPC can be applied in the ends of justice. Even in view of rule 15 of Order 5 of the Code summons ought to have been served on Mangali the respondent no. 4 in person, otherwise the process-server could wait for a reasonable time to ascertain if there was any agent authorised by him (Mangali) to accept notice on his behalf. No such efforts appear to have been made by the Procese Server. His report indicates that Mangali was not available at his residence consequently notice was served on his son. Why the notice was served on the son who was a different chak holder and poses a big question mark.
(3.) BROADLY speaking even assuming Order 9 rule 13 of the code to apply to the present case there are two conditions which have to be fulfilled before an exparte decree could be set aside. First is that the summon was not duly served on the defendant and in the alternative it has to be proved that the defendant was prevented from appearing when the case was taken up for hearing. Much emphasis by the legislature is that not only summons has to be served on the defendant but it has to be duly served. Only service of summons would not sufficient unless it has been duly served. The connotation of word 'duly' may be ascertained. According to the Lexicon Webster's Dictionary of the English language, the word 'duly' means in a due and proper manner and at the proper time. According to Black's Law Dictionary the word 'due' means just, proper, regular, lawful, sufficient and word 'duly' means in due and proper form or manner, according to legal requirements.;