Rajesh Balia, J. - (1.) THE original Civil Misc. Appeal has been attached with this Special Appeal. For the present, Office objection No. 2 is waived.
(2.) ADMIT . Issue notice. Mr. M.R. Singhvi who was appearing in the Misc. Appeal for the respondent No. 3 the only served respondent, present in Court was requested to accept notice on behalf of Insurance Company. After having perused the order dated 28.09.2006 and consequential order giving affect thereto, we are of the opinion that the order of dismissing the Miscellaneous Appeal for respondents 1 & 2 having not been served, deserves to be set aside. The unserved respondents are the residents of outside State of Rajasthan and are respectively driver and owner of the vehicle by which the accident was caused. In these circumstances it is too much to expect the heirs of the victim of the accident to find out the exact location of the driver and owner of the vehicle and to effect upon them a personal service as was directed by the learned Single Judge vide order dated 28.09.2004 by way of peremptory order to result in dismissal of appeal on the ground of return of unserved notices. Primarily the regular service is to be effected through the official agency of process server. On failure to do so, like service may even be effected by way of substituted service without resorting to such process and thereby no fault on the part of appellant to visit him with this penalty of dismissal of his case does not serve the cause of justice. It rather results in failure of substantial justice. It was at least required that if once respondents are not served through ordinary process the alternative mode of service may be pursued. Moreover, as we shall presently see in the facts and circumstances of the present case for just decision of appeal presence of respondents No. 1 and 2 was not even essential.
(3.) IN these circumstances the dismissal of the appeal for that reason cannot be sustained. Accordingly, the appeal is allowed. The orders dated 08.02.2005 and 28.09.2004 are set aside.;