HARBANS LAL, J. - (1.) AN award for the recovery of some amount was announced against the petitioner and two others and in favour of respondent No. 4. The same was filed in the Court for being made a rule of the Court. The Court ordered on 1st June, 1973, for summoning of the petitioner and others for 24th July, 73, on 23rd July, 73 the process server went to the house of the petitioner to effect service. As he was reported to be out of station, the process -server made a report on that very date saying that the petitioner had gone out of Amritsar. In the said report there is nothing to show that the process -server had gone to the house of the petitioner more than once and as to at what time he had gone to effect service. On 24th July, 1973, the Court passed the following order: - "Defendants Nos. 1 to 3 not served at the address given. I am satisfied that their services cannot be procured through ordinary means. They are ordered to be summoned though proclamation by publication in the 'Daily Ranjit Patiala' for 27th August, 1973, on payment of process fee and proclamation charges. Defendant No. 4 has been served through Ram Murti, who is not present. He is, therefore, proceeded ex parte.
(2.) ON the publication of the advertisement in the newspaper ex -parte decree was passed against the petitioner and others on October 27, 1973, as the petitioner and others did not put in appearance. Thereafter, application for executing the said decree was filed and warrant for execution was issued. The petitioner submitted application under Order 9, Rule 13 Code of Civil Procedure, for setting aside the ex parte order against him on May 24, 1974, in which it was contended that the award had been made the rule of the Court and ex parte decree had been passed against him illegally without notice to him and that he came know of the ex parte decree only May, 14, 1974, from plaintiff when the latter approached him to execute the warrant. This application was contested by the respondent decree -holders. On behalf of the decree -holders only Kulwant Singh respondent appeared in the witness box and made his statement. On behalf of the petitioner the report of the process -server was brought on the record and the petitioner also made his own statement. The trial Court dismissed this application on the ground that the petitioner had been served through publication in the newspaper in accordance with law and that the said substituted service was equivalent to personal service of the petitioner. This order has been challenged in the present revision petition. The persual of the report of the process -server and the order of the trial Court directing service of the petitioner through publication in the newspaper makes it abundantly clear that the process -server had gone to the house of the petitioner to serve the summons on him only once and that also one day prior to the date fixed for the attendance of the petitioner in the case. According to the report, the petitioner was not at his residence and had gone out of Amritsar. The report did not indicate that the petitioner was trying to evade service. Neither was any attempt made by the process -server to see if any male member other than the petitioner was the house of the petitioner nor did he try to find out if the petitioner had any authorised agent to receive the summons, nor does the report show as to why the process -server did not think it fit to paste the copy of the summons on the residential house of the petitioner. The order of the trial Court dated the 24th July, 1973, as reproduced above does not show even remotely if the trial Court had applied its mind to the report of the process -server and the various provisions under Order 5 of the Code of Civil Procedure relating to the service of summons. Under Rule 15 of Order 5 of the Code of Civil Procedure, if the defendant is not found by the process -server nor has he any authorised agent to accept service of summons, service may be effected on any adult male member of the family of the defendant who may be residing with him. Under Rule 17 of Order 5 if the serving officer, after using all due and reasonable diligence, cannot find defendant, and there is no authorised agent or any male member of the house to accept service, the serving officer should affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and shall make a report relating thereto giving all the facts and circumstances. It is only when the methods as provided under Rule 15 and 17 could not be complied with for the purpose of effecting service of summons on defendant and the Court is satisfied and comes to a conclusion that there are reasons to believe that the defendant is keeping out of the way for the purpose of effecting service or that for any other reasons the summons cannot be served in ordinary way, the Court may order summons to be served by affixing a copy on some conspicuous part of the house last resided by him or where he carried business or personally worked for gain lastly. Under Rule 20 of Order 5 of the Code of Civil Procedure, it is only as a last resort that the trial Court has been empowered to order service of the defendant in any other manner which has been now clarified in the amended Rule 20 that service may be ordered to be effected through advertisement in the newspaper. A close persual of the various provisions of Order 5 shows that the order regarding service of the defendant by publication in the newspaper is to be passed by the Court not rightly but only other means as provided in the said ORder. Besides, in order to exercise jurisdiction for this purpose, the Court must satisfy itself that there is reason to believe that the defendant was keeping out of the way to evade service. This is an essential condition precedent, otherwise the process of the Court is likely to be abused.
(3.) SO far as the present case is concerned, no other attempt was made by the process -server to effect service of summons on the authorised agent of the petitioner, if any, or on any male member of the house in which the petitioner was residing or to paste a copy of the summons on the residential house of the petitioner. The process -server had gone to effect service on the petitioner only once. It was not expected of the petitioner to remain in his house all the 24 hours in anticipation that the process -server may arrive to effect service on him. It was incumbent on the process -server to have tried to effect service on the petitioner sufficient time before the hearing of the case. The summons could even be given to any male member of the house. As a last resort, summons should have been affixed on the outer door of his house. It is surprising that the Court without applying its mind to various provisions of Order 5 and without there being any circumstance to justify the inference that the petitioner was evading service, though it fit to pass the order regarding advertisement in the newspaper which is, in fact, resorted to when no other alternative is left. In the present case there was absolutely no justification for the trial Court to pass this order regarding advertisement in the newspaper. The said order was consequently patently without jurisdiction and was quite arbitrary.;