- (1.) D. K. Seth, J. Original Suit No. 77 of 1990 was decreed ex-parte by the learned Civil Judge, Mathura on 28th January, 1992. The petitioner-defendant in the said suit filed an application under Order IX, Rule 13 of the Code of Civil Procedure. The said application was registered as Misc. Case No. 71 of 1992. By an order dated 22nd May, 1999, the learned Civil Judge (Senior Division), Mathura had dis missed the said Misc. Case. Appeal No. 102 of 1999 was preferred against the same. By an order dated 9th August, 1999, the learned District Judge, Mathura had dismissed the said appeal affirming the order dated 22nd May, 1999. These orders have since been challenged in this writ petition.
(2.) MR. Janardan Sahai, learned coun sel for the petitioner had assailed the said order on the ground that both the Court below have found that summons were never served on the petitioner defendant. But on the ground that the defendant had knowledge about the suit, the application under Order IX, Rule 13 was rejected. According to him, the Court having recorded a finding that summon were not served only on the basis of presumption, it could not have arrived at such a con clusion, which on the face of the record are perverse and as such, the said orders should be set aside. Mr. Ajay Yadav, learned counsel for the opposite parities contends that the Court had duly proceeded under Order V, Rule 17 of the Code, Order V, Rule 19-A and thereafter had got the notice publish ed in a daily newspaper circulated in the village and that initially the notices were served on the brother of the defendant and subsequently the defendant did not accept the notice as such the Courts have rightly come to a conclusion that the defendant had knowledge of the proceedings. There fore, the orders are justified. I have heard both the learned coun sel at length. It appears from paragraph 8 of the appeal Court's order that the initial ser vice of summons under Order V, Rule 17 of the Code was found insufficient for which fresh service was directed to be made, which was again rejected by process server to have been served by refusal. The Court did not accept the said service and service was directed to be affected under Order V, Rule 19-A of the Code. The said service under Order V, Rule 19-A was also not accepted. From the order sheet it appears that on 21st November, 1990 the plaintiff had applied for publication of the notice in a newspaper. On 17th January, 1991, the suit was fixed on 19th March, 1991 for disposal. Thereafter on 18th January, 1991, another application for publication was moved supported by an affidavit since the earlier application was not supported by an affidavit. By an order dated 18th January, 1991, publication was permitted. On 13th February, 1991, the publication was brought on record. The case was there after fixed for ex-parte hearing and ul timately the suit was heard ex-parte and decreed ex-parte on 28the January, 1992. There is nothing on record to show that procedure under Order V, Rule 20 of the Code was ever adopted, Order V, Rule 20 of the Code is available only when the Court is satisfied that there are reasons to believe that the defendant is keeping out of the way for the purpose of avoiding service and that summons could not be served in ordinary way, then the Court may pass the order for substituted service under sub-rule (1), Rule 20 by affixing a copy of the summons on some conspicuous place in the Court House, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personal ly worked for gain, or in such other manner as the Court thinks fit. There is nothing on record to show that this procedure was ever adopted. On the other hand on an application for publication; permission was granted to pubic the summon. Such publication is also permitted under Rule 20, sub-rule (1-A) of the Code, sub-rule (1-A) prescribes that while acting under sub-rule (1), the Court may order adver tisement in newspaper. Thus such publica tion is part of the procedure of Rule 20 of the Code. The publication cannot be per mitted skipping over sub-rule (1) of Rule 20 of the Code. Such publication may be permitted in addition to substituted ser vice of sub-rule (1) of Rule 20 of the Code but it cannot be permitted skipping over the same.
(3.) IN the present case, the Court did not accept the service under the Rule 17 or under Rule 19-A of Order V of the Code as sufficient. Therefore, it cannot be said that there was proper service. This Court had also held so. But the Court had proceeded on the basis that the petitioner had knowledge of the proceeding but the Court had not come to any definite finding as to what was the source on which the knowledge was presumed by the Court. The Second Proviso to Rule 13 of Order IX of the Code Provides that any ex- parte order shall not be set\ aside merely because of the ir regularity of service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.;