ABDUL RASHID Vs. STATE OF CHHATTISGARH & ORS.

JUDGEMENT

(1.) BY this petition, the petitioner seeks to challenge the legality, validity and propriety of the order dated 07.11.2008 (Annexure P/1) passed by the learned Additional District Judge, Bilaspur, passed in Civil Suit No. 06 -A/2008 (Abdul Rashid Vs. Jimmi Barjorji Karbari and three others), whereby the application of the petitioner filed under Order 5 Rule 20 read with Section 151 of the Code of Civil Procedure, 1908 (for short, "CPC"), was turned down.

(2.) THE brief facts, in nutshell, are that the petitioner/plaintiff filed a civil suit for declaration of title and possession before the court below. The suit has been instituted on the ground that the petitioner/plaintiff has purchased the double storied suit house for Rs.6,00,000/ - in the year 1993 from the respondents No. 2 to 4, situated at Juna Bilaspur within the premises of Municipal Corporation, Bilaspur, Ward No. 14, Vinoba Nagar, bearing Khasra Nos. 661/2, 646/5, 661/3 & 661/4 admeasuring 6108.69 sq. ft. The possession of the suit house has been handed over to the petitioner/plaintiff and one document to that effect was also executed by the respondent No. 3 on 08.07.1993 (Annexure P/3). The petitioner has already paid the entire amount of the respondents, but they are not executing the sale deed in favour of the petitioner. Thereafter petitioner filed a suit against the respondents before the court blow on 17.07.2008 and on the same day notices were directed to be issued to the respondents. The petitioner paid the process fee on 17.07.2008 (Annexure P/4). On 11.09.2008 the notices of the respondents No. 2 to 4 returned unserved and the notice could be served only on respondent No. 1/defendant and the case was adjourned to 29.09.2008. On 29.09.2008 again notices were directed to be issued to the respondents No. 2 to 4 by ordinary post as well as by registered AD within three days and the case was fixed on 07.11.2008. On 29.09.2008 the petitioner also paid the process fee (Annexure P/5) and the notices were again issued to the respondents No. 2 to 4. On 07.11.2008 notices sent to the respondents were received back unserved with an endorsement that the respondents No. 2 to 4 were not residing at the given address. On 07.11.2008 the petitioner moved an application under Order 5 Rule 20 of the CPC stating that since the notice sent to the respondents 2 to 4 returned unserved twice with a endorsement that the respondents were not residing at the given address, the petitioner may be permitted to serve the respondents No. 2 to 4 through paper publication. The court below by order dated 07.11.2008 has rejected the said application. Hence, this petition. Learned counsel appearing for the petitioner submits that the trial Court while dealing with the said application ought to have appreciated the sole object of the provision of Order 5 Rule 20 of the C.RC. i.e., the other party should not be condemned unheard. Learned counsel further submits that the trial Court ought to have permitted the petitioner to take recourse to the provisions of law since the petitioner has no knowledge of the correct address of the respondents. The trial Court ought to have appreciated that the petitioner has made all efforts to serve the respondents through notices, but the respondents could not be served. Further, the trial Court has grossly erred in holding that it is incumbent on the plaintiff to give correct address of the defendants. The courts below have not at all appreciated the facts and circumstances of the case in its letter and spirit and passed the orders, therefore, the order passed by the trial Court is illegal and contrary to the provisions of law and the same deserves to be quashed. I have heard learned counsel appearing for the petitioner, perused the pleading and documents appended thereto.

(3.) ON perusal of the order dated 07.11.2008 (Annexure P/1) it appears that the trial Court has rejected the application filed by the petitioner under Order 5 Rule 20 of the C.P.C., holding that it is incumbent on the plaintiff/ petitioner to know the correct address of the defendants/respondents to serve them, therefore, the petitioner cannot be permitted to serve them through advertisement. Order 5 to the CPC deals with issue and service of summons. Order 5 Rule 20 of the CPC provides for substituted service, which reads as under: