- (1.) THIS is a revision against the order of the Additional Commissioner Jaipur, dated 25. 5. 1961, by which he has set aside the order of the Assistant Collector Bairath dated 19. 11. 60 accepting an application for restoration of the suit and ordered the case to be remanded with the direction that the application be re-heard after giving due notice to the opposite party. The judgment has been assailed on the ground that the learned Additional Commissioner had no jurisdiction to hear the appeal against the order of the Tehsildar Bairath as he has done. THIS objection is, however, mis-conceived in the sense that the clear provision of sec. 225 (1) of the Rajasthan Tenancy Act (hereinafter referred to as the Act) is ignored while advancing this argument. An appeal against such an order might not have been provided under O. 43 of the Code of Civil Procedure (hereinafter referred to as the Code ). But it has been certainly provided under sec. 225 (1) of the Act. The provisions of the Code are applicable to the suits under the Act (as the suit out of which these proceedings arise undoubtedly is) only so far as they are not inconsistent with the provisions of the Act itself. When sec. 225 (1) of the Act provides an appeal, the provisions of O. 43 of the Code would not come into application on account of this being inconsistent with this clear provision of the Act. The learned counsel for the applicants, Shri Makhan Lal, however, further presses his argument on an incorrect reading of the provisions of sec. 208 of the Act which deals with the application of the provisions of the Code to the suits and proceedings under this Act. It is that he reads the provisions of sub-sec. (c) of sec. 208 as meaning that the provisions contained in List I of the Fourth Schedule shall apply to all suits and proceedings under this Act subject to the modification contained in List II of the Fourth Schedule". It is however, very clearly not so. Simply because the expression "shall apply to all suits and proceedings under this Act subject to the modification contained in List II of the Fourth Schedule 'has been printed in the same line as provisions of cl. (c),' provision contained in List I of the Fourth Schedule," it cannot mean that the expression "shall apply to all suits and proceeding under this Act subject to the modifications contained in List II of the Fourth Schedule" is related only to the, provisions of clause (c) referred to above and not to other provisions of the section. THIS expression "shall apply to. . . . . . . . . the Fourth Schedule" does, as a matter of fact, form part of the sentence, the "subject" whereof is. The provisions of the Code of Civil Procedure 1908 (Central Act Vs. of 1908) except" occurring in the first two lines of the sec. 208. The section reads: "the provisions of the Code of Civil Procedure 1908 (Central Act V of 1908), except: " (a) Provisions inconsistent with anything in this Act, so far as the inconsistency exists, (b) Provisions applicable only to special suits or proceedings outside the scope of this Act; and (c) Provisions contained in List I of the IV Schedule,shall apply to all suits and proceedings under this Act, subject to the modification contained in Lists II of the IV Schedule".
(2.) THAT is to say, this section lays down that the provisions of the Code shall apply to the suits and proceedings under this Act with the modifications contained in List II of the Fourth Schedule but only when they are not inconsistent and when they neither relate to any special suits or proceedings provided by the Code nor form part of List 1 of the Fourth Schedule. It does not lay down, as the learned counsel for the applicant contends, that the provisions not contained in List I of the Fourth Schedule of the Code, shall always apply to the suits and proceedings under this Act. This contention is negatived even by the fact that the List I of the Fourth Schedule does not contain the list of the sections and orders of the Code which "apply" to the proceedings under the Act; but on the other hand, contains only a list of the sections and orders of the Code which 'do not apply' to the suits or proceedings under this Act. I Next, it has been contended on behalf of the applicant that the learned Additional Commissioner should have himself passed final orders in the proceeding instead of remanding it as he has done and that he has therefore failed to exercise the jurisdiction vested in him. This contention too is again devoid of any force. The learned Additional Commissioner had found that service effected on the opposite party Brij Beharilal for the date 19. 11. 60 (which has been mistyped as 10. 11. 60) was no service in the eye of law as it had been done contrary to the provisions of Order 5 Rule 20 of the Code. If the learned Assistant Collector is found to have proceeded on the presumption that the opposite party Shri Brij Beharilal had been duly informed of the date 19. 11. 60 when he had not really been, the proceedings have to be re-done from that stage before any final order can be passed in the matter. This would certainly be a work to be done by the trial court and not by the first appellate court. The first appellate court was therefore perfectly justified in remanding the case for proceeding afresh from that stage and passing order in accordance with law. I have gone through the proceedings of the learned trial court. I find that 27. 8. 60 had been fixed for the hearing of the case at camp Shahpura, of which due notice had been given to the parties. But on that date, it appears from the order-sheet of the file of the learned trial court, the Presiding Officer could not go to Shahpura because of his not keeping well, and he, therefore, directed that fresh notice of the date 29. 9. 1960 be issued to the parties. All the orders on dates 19. 9. 60 12. 10. 60 and 5. 11. 60 thereafter go to state that the notices for the dates fixed were not found to have been served upon the two opposite parties. On 17. 11. 60, the Presiding Officer (Assistant Collector) himself was not present and the case was taken by somebody else on his behalf (who he was and how far he was authorised to record the order that he has done, is not clear from the file ). On this date 17. 11. 60 it has been recorded that the notice of the opposite party had been returned duly served and that they were absent despite notice. It has been further recorded that the file be put up on 19. 11. 60 before the presiding officer for proper orders. On 19. 11. 60 the learned Assistant Collector passed an order that as the opposite party were absent despite notice, ex-parte proceedings be taken against them. Upon this order, the learned counsel on behalf of the applicant did not even like to have the applicant himself examined and proceeded to argue the case. After hearing the arguments, the learned Assistant Collector ordered the restoration. It was against this order that the appeal had been preferred to the learned Additional Commissioner. The notice for the date 17. 11. 60 is on the record. It only says that the process-server went to the village to have the notice served but he found that the opposite party Brij Beharilal had gone out to some other village. Only upon this, he affixed the notice on the outer wall of the house in which he was told the opposite party Brij Beharilal resided. The learned Assistant Collector took this service to be a sufficient service. As against it, the learned Additional Commissioner took this service not to be a sufficient service. Now, vide Order 5 Rule 17 of the Code, summons are required to be served personally on the party concerned or if he cannot be found after using due and reasonable diligence, and there is no agent or other person empowered to accept service of the summons on his behalf nor any other person on whom service can be made, the serving officer shall affix a copy of the summon on the outer door or some other conspicuous part of the house in which the party ordinarily resides or carries on business or personally works for gain and shall then return the original to the court stating the circumstances under which the copy was so affixed alongwith the name and address of the person by whom the house was identified and in whose presence the copy was affixed. Vide Order 5 Rule 20, the court can also order a substituted service by the affixing of a copy on the house, if it is satisfied that there was reason to believe that the party was keeping out of the way for the purpose of avoiding service. The endorsement on the back of the summons for the date 17. 11. 60 has been perused by me and it is not found to contain anything to show that any due and reasonable diligence had been used by the process-server to find out the opposite party Brij Beharilal before taking steps to affix the copy of the summon on his house. What the endorsement contains is only that the summon was affixed because of the opposite party Brij Beharilal being not available at his house. This was certainly not enough, and that specially when the learned trial court had nowhere ordered the service of summons by a substituted manner. Besides, as has been contended by the learned counsel for the opposite party very rightly, it was only one of the opposite parties,brij Beharilal,alone on whom this "substituted service too had been made. There is nothing on record to show that a service had been effected on the other opposite party Shri Bhuria also. When both of them were defendants in the suit as well as respondents to the application for restoration, the ex-parte order could have been, and should have been, passed after serving notice on both of them and not only on one of them and that also in a defective manner as discussed above. The learned Additional Commissioner sitting as an appellate authority had, therefore, no alternative but to accept the appeal and remand the case back to the learned trial court for proceeding afresh from the relevant stage in the manner provided by law. There is thus no force in this revision, which is hereby rejected. .;