Code of Civil Procedure, 1908:
Or. V, rr. 17 and 20 – Application for susbstituted service – Allowed – Subsequent to substitued service by publicatin, ex-parte decree – Appeal under s.96 CPC – Allowed by High Court – On appeal, held: In the present case there was a breach of the provisions of Or. V, r.17 – Substituted service is an exception to the normal mode of service – Or. V, r. 20 requires the Court to be satisfied either 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 – Trial court failed to apply its mind to the requirements of Or. V, r. 20 and passed a mechanical order – Trial court also ignored the provisions contained in Chapter 3 of Civil Manual – Civil Manual issued by High Court of Bombay – Chapter III – Paragraphs 33 to
36. Decree:
Ex-parte decree – Remedy against – Held: Remedy against ex-parte decree is either an appeal u/s 96 CPC or an application u/Or. IX, r. 13 CPC or both the proceedings simultaneously – Right of appeal is not taken away by filing application u/Or. IX, r.13 – But if appeal is dismissed, application u/Or. IX, r.13 is not maintainable – When application u/Or. IX r.13 is dismissed, remedy lies u/Or. XLIII, r.1 – However once appeal u/Or.XLIII, r.1 is dismissed same contention cannot be raised in appeal u/s. 96 – Code of Civil Procedure, 1908 – s.96, Or.IX, r.13 and Or. XLIII, r.1.
Dismising the appeal, the Court
HELD: 1.1 The record before the Court would indicate that the Trial Court by its order dated 9 February 2011 directed the issuance of summons to the original defendant, returnable on 15 March 2011. In pursuance of the order, summons were issued on 4 March 2011. The report of the bailiff dated 11 April 2011 indicates that the summons were returned unserved and the bailiff was informed that the original defendant had left the premises nearly two years earlier and resided elsewhere. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order V Rule
17 CPC. When the application for substituted service was filed before the Trial Court under Order V Rule 20 CPC, a cryptic order was passed on 2 September 2011. Order V Rule 20 requires the Court to be satisfied either 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. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the Trial Court failed to apply its mind to the requirements of Order V Rule 20 and passed a mechanical order. Besides this, the Trial Judge ignored the provisions contained in Chapter III of the Civil Manual issued by the High Court on its appellate side for the guidance of civil courts and officers subordinate to it. [Paras 14,15][364-D; 365-A-D]
1.2 There was a clear breach of the procedure prescribed in Order V Rule 17 even antecedent thereto. Besides, the order of the Court does not indicate due application of mind to the requirement of the satisfaction prescribed in the provision. The High Court was, in these circumstances, justified in coming to the conclusion that the ex-parte judgment and order in the suit for specific performance was liable to be set aside. [Para 15][366D-E]
2. A defendant against whom an ex-parte decree is passed has two options: The first is to file an appeal. The second is to file an application under Order IX Rule 13 CPC. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application under Order IX Rule 13. But if the appeal is dismissed as a result of which the ex-parte decree merges with the order of the Appellate Court, a petition under Order IX Rule 13 would not be maintainable. When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Section 96. [Para 16][366-G-H; 367-B]
Bhanu Kumar Jain v Archana Kumar [2004] 6 Suppl. SCR 1104 : (2005) 1 SCC 787; Rabindra Singh v
Financial Commissioner, Cooperation, Punjab [2008]
8 SCR 813 : (2008) 7 SCC 663; Mahesh Yadav v
Rajeshwar Singh [2008] 17 SCR 726 : (2009) 2
SCC 205 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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