JUGAL KISHORE GANDHI Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) The applicant defendant (guarantor) has filed this Revision petition against order dated 5.01.2001 wherein the court has directed that the other defendants No.1 to 4 be served by publication. Learned Counsel for the applicant submits that the publication of the notices in the newspaper would adversely affect the reputation of the present applicant (guarantor) and as present was not a case where the provisions of Order 5 Rule 20 C.P.C. were required to be applied, the trial Court was absolutely unjustified in directing the substituted services. Shri Divakar, Learned Counsel for the non-applicant No. 1 has opposed the application. I have heard the parties.

(2.) In a suit where some of the defendants are not served for one reason or the when other the Court directs that such unnerved defendants/respondents be served by substituted services, the represented defendants/respondents are in no way or manner adversely affected. In any case, when the Court directs that some person should be served by substituted services, then it does not become a decision on an issue. I fail to understand that how the present applicant/defendant would suffer a dent to his reputation by publication of the notices against the other defendants, when such notices are published in the names of only those persons who are still unserved. A perusal of Section 115 C.P.C. would show that the High Court may interfere in the order passed by the trial Court if the Court has exercised jurisdiction not vested in it by law, or has failed to exercise the jurisdiction vested in it or acted in the exercise of its jurisdiction illegally or with material irregularity. Section 115 further provides that the High Court shall not vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceeding, except where (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or the other proceedings, or (b) the order, if allowed to stand, would occasion failure of justice or has caused irreparable injury to the party against whom it was made.

(3.) So far as Clause (a) is concerned it does not apply to the present case because the trial Court has not decided an issue but has simply directed that particular steps be taken for serving the summons on the unserved defendants. Even if the order is set aside it is not going to dispose of the whole suit. Clause (b) applies to a case where the order is allowed to stand, it would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Undisputedly, no order against the interest of the applicant has been made. The Court has not said that while publishing the notices, name of the guarantor be published or any further action be taken against the guarantor. I am unable to hold that if the order is allowed to stand it would occasion a failure of justice or cause irreparable injury to the present applicant. In any case, the trial Court had jurisdiction to issue a direction under Rule 20 of Order 5. On the merits, I am unable to hold that the trial Court has committed any irregularity or illegality requiring interference of this Court in these proceedings. On the merits the revision petition is dismissed. It is however directed that on payment of P.F. and supply of copies and on deposit of the necessary expenses, the notices shall be issued to the unserved defendants by ordinary measure, registered envelope, acknowledgment due and by publication. Before orders for publication are issued, if the present applicant makes an application that he is ready and willing to serve the other defendants then on payment of P.F. by the present applicant and supply of copies by the plaintiff the trial Court shall issue notices and shall require the present applicant to accompany the bailiff for affecting personal services on the unserved non-applicants. The petition is dismissed with the directions aforesaid. Copy to parties today.