Harbans Lal, J. - (1.) THE Petitioner filed a suit against the Respondent firm in the Court of the Subordinate Judge Second Class, Fazilka for the recovery of Rs. 3,934.58. The summons was ordered to be issued for appearance of the Respondent -Defendant on October 8, 1970, for the first time, for December 9, 1970. On this date, the summons had not been served nor was that received back and the Court ordered the summons to be sent through registered post for January 15, 1971, on which date the summons was received back with an endorsement by the postman of the registered envelope that the addressee had "refused". On January 15, 1971, the Subordinate Judge First Class, Fazilka, passed the following order: I am, therefore, satisfied that the Defendant is intentionally evading service. I therefore, order that he be summoned by Munadi and affixation of the summons for 11th February, 1971. PF. and Munadi charges within two days. The report regarding the proclamation was not received on February 11, 1971 and the case was thus adjourned to February 18, 1971. On that day also, no report was received and the Subordinate Judge passed the following order: Present counsel and the Plaintiff. Munadi not made even after awaiting. Hence the Defendant be served by publication in Daily Akali Patrika on deposit of necessary publication charges. To come up on 19th. March, 1971. On March 19, 1971, ex parte proceeding wore ordered against the Respondent as the publication had been made in the newspaper. After recording evidence of the Plaintiff, ex parte decree was passed on April 16, 1971.
(2.) THE Defendant -Respondent, submitted an application under Order IX Rule 13, Code of Civil. Procedure (hereinafter to be referred to as the Code), for setting aside the ex parte decree on July 21, 1971. It was alleged in the said application that the Defendant bad not been served, that he came to know of the ex parte decree having been passed against him on July 19, 1971 and thus the application was within time from the date of the knowledge of the said decree. These allegations were refuted by the Plaintiff -Petitioner. The following issues were framed: 1. Whether the application is in time ? 2. Whether there are sufficient grounds and cause to set aside the ex parte decree dated April 16, 1971 ? After the evidence of the parties had been recorded, the trial Court dismissed the application of the Defendant -Respondent holding that the application had been filed after the expiry of limitation of thirty days and that there was no sufficient cause proved to warrant the setting aside of the ex parte decree. An appeal was filed by the Defendant -Respondent and the learned District Judge, Ferozepur vide his order dated January 9, 1975, reversed the decision of the trial Court and set aside the ex parte decree. It was held inter alia that "due service" had not been effected on the Defendant, that the application was within time from the date of the knowledge of the ex parte decree and that there was sufficient cause for setting aside the said decree. The present revision petition has been filed by the Plaintiff -Petitioner against that order. The main and the important question relating to both the issues Nos. 1 and 2 is whether "due service" had been effected on the Defendant -Respondent. It is crystal clear from a perusal of the various orders passed by the trial Court from October 3, 1970 to March 19,1971 that the summons sent in ordinary manner had neither been served on the Defendant -Respondent nor received back when it was ordered that the summons be sent by registered post. When the summons sent through registered post was received back with an endorsement on the registered cover that the same had been refused by the Defendant -Respondent without verifying whether the summons had been sent along with a copy of the plaint or not, as required under Order v. Rule 2 of the Code, the learned Subordinate Judge ordered on January 15, 1971, for affixation of the summons and also for proclamation by "Munadi". It may be mentioned here that the District Judge, while deciding the appeal filed by the Defendant -Respondent, opened the envelope sent through registered post and found that a copy of the plaint had not sent along with the summons. No report was received regarding the proclamation in the village by beat of drum (Munadi) or regarding affixation of the copy of summons on the house of the Defendant -Respondent. In view of this, it was executed that the trial Court would again order for affixation and proclamation by Munadi, but it is not clear from his order dated February 18, 1971 why this order was changed, and it was ordered that publication may be made in Akali Patrika. Substituted service can be ordered only, if the pre requisite conditions as required under Order v. Rule 20 of the Code are satisfied, Rule 20 of Order v. of the Code is reproduced below: 1. Where the Court 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 reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in 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 personally worked for gain or in such other manner as the Court thinks fit. 2. Service substituted by order of the Court shall be as effectual as if it had been made on the Defendant personally. 3. Where service is substituted by order of the Court, the Court sfiall(sic)ix such time for the appearance of the Defendant as the case may require. From a perusal of this provision, it is clear that the following conditions must be fulfilled to the satisfaction of the Court before ordering substituted service, (i) that the Defendant is keeping out of the way for the purpose of avoiding service ; and (ii) that for any other reason, summons cannot be served in the ordinary way. Even in the case of substituted service, a copy of the summons has to be affixed on a conspicuous place in the Court house as well as upon some conspicuous part of the house in which the Defendant is known to have last resided or carried on business or personally worked for gain. In the present case, there was no warrant for the trial Court to order, in the first instance, that the summons be sent by registered post when the summons sent in the ordinary manner had not been received and there was absolutely no report to the effect that the Defendant -Respondent was evading service. When the Court ordered service by affixation and Munadi on January 15, 1971, it did not apply its mind to the requirements of the mandatory provisions of the law as contained in Order v. Rule 2 of the Code, that the summons must be accompanied by a copy of the plaint. Strongly enough, even this order regarding the affixation and Munadi was not pursued and all of a sudden, on February 18, 1971, publication in the Akali Patrika was ordered. From all these orders, it is not possible to conclude that the trial Court had at all applied its mind to satisfy itself if substituted service through publication in the newspaper was warranted. The learned District Judge, under the circumstances, came to the following conclusion: The learned Subordinate Judge, in these circumstances, was not having any material before, which could indicate that the Defendants were keeping out of the way for the purpose of avoiding service or that the summons could not be served on them in the ordinary manner. He was, therefore, not justified in ordering substituted service and directing that the Defendants be served through proclamation in a newspaper. This finding is well founded and no flaw what saver can be found with the same. It appears that the trial Court in its over anxiety to dispose of the case finally with despatch and speed did not care to look to the provisions of Order v. Rule 2 and Order v. Rule 20 of the Code and did not even care to think that undue haste could result in palpable injustice to the Defendant -Respondent, nor could it serve the cause of justice in disposing of the case in such a casual manner. Some times, it happens that the Subordinate Judges do not mind giving adjournment after adjournment till the case becomes more than one year old. The present is the case on the other extreme in which the Subordinate Judge was anxious to finally decide the case unmindful of the disastrous consequences to the cause of justice. While it is true that the rules of procedure should not be interpreted too technically or in a rigid manner which may thwart the cause of substantial justice, but all the same, these rules are intended to ensure that injustice is not done to either of the parties. Order v. Rule 2 of the Code in providing that a copy of the plaint must accompany the summons has laid down a very salutary principle, strict compliance of which is essential for not only | doing justice to the Defendant, but also for ensuring speedy administration of Justice. It has generally been seen that the summons sent to the Defendants are not generally accompanied by copies of the plaints. The result is that even if the Defendant is served, on appearance on the date fixed, he is justified in praying for a copy of the plaint and getting the case adjourned for filing the written statement This necessarily -results in unnecessary delay which could be easily avoided if the Subordinate Judges issue strict instructions to the effect that a copy of the plaint must accompany the summons. Similarly, the Courts have to be very careful in ordering substituted service and not to act in a manner that an impression may be caused that they have become a party to the maneuvers of the clever Plaintiffs that ex parte proceedings may be ordered against the Defendants on one pretext or the other and thus ex -parte decrees may be obtained so far as the present case is concerned, there was absolutely no warrant or justification to order publication in the newspaper without even waiting for affixation of a summons on the house of the Defendant -Respondent and proclamation by beat of drum in the locality where the Defendant Respondent was residing.
(3.) MR . G.R. Majithia, the Learned Counsel for the Petitioner, has urged that the requirements of Order v. Rule 2 of the Code that the summons should be accompanied by a copy of the plaint are Not mandatory and that the summon can be even sent or served without a copy of the plaint and as such, the service will be "due service". I have not been able to persuade myself to agree with this contention. Order v. Rule 2 of the Code clearly lays down that "every summons shall be accompanied by a copy of the plaint or if so permitted, by a "concise statement". The word "shall" in this provision is clearly and expressly mandatory in nature as the same is intended to ensure that the Defendant is not taken by surprise. It is only when the Defendant receives a copy of the plaint at the time of the service of the summons on him that he has a clear picture of the nature of the suit having been filed against him and the nature of the pleas that he is required to meet on appearance in the court on the date fixed I am supported in this view by a decision of this Court in Jagan Nath and Anr. v. Tek Chand, 1974 PLR 39, Tuli, J., (as he then was) in Jagan Nath's case (supra) in which the facts were almost similar to the present case, held as under: Mere service of the summons is not synonymous with 'due service' as used in Order IX Rule 13 of the Code of Civil Procedure, merely because the Defendant had been served with a summons of the suit without a copy of the plaint, the learned trial Court had no jurisdiction to proceed to decide it ex -parte. That could be done only if the Defendant had been duly served that is, he had been served with the summons along with a copy of the plaint. Refusal to take delivery of the notice sent by registered post can be deemed to be prima facie proof of service of the document sent in that registered envelope, but not of any other document which was required under the law to accompany that document, but did not. The Learned Counsel for the Petitioner has challenged the correctness of the judgment in Jagan Nath's case (supra). However, I do not agree with the same. In my considered opinion, Order v. Rule 2 of the Code has been absolutely correctly interpreted in Jagan Nath's case (supra).;