ABU BACKER Vs. JOHN

JUDGEMENT

(1.) REVISION petitioner filed the suit to recover Rs. 10,000/- as damages alleging that the respondent forcibly and illegally took him to unlawful custody and detained him in the police station. . At the instance of the respondent the case was transferred from the Sub Court Badagara to the Sub Court Palghat where it is numbered as O. S. 238/1978. The case of the petitioner is that summons was taken to the respondent several times, that he purposely evaded it, that substituted service was ordered by the court, that publication was effected in'mathrubhumi' dated 25-2-1979, that he did not enter appearance in the court and that the suit was decreed on 22-3-1979. The learned counsel for the revision petitioner submitted that the trial court was not at all justified in allowing the petition as admittedly paper publication was effected as per court order. Learned counsel for the respondent contended that the court had ordered affixture as well as publication and as publication alone was effected it cannot be said that there has been sufficient compliance of the court order and at any rate as the affixture was done at the Rest House at ernakulam and not at the last known residence of the respondent. It can never be said that there is effective substituted service to bind the respondent.

(2.) SUBSTITUTED service by its very name denotes that it is not service in the ordinary sense of the word. SUBSTITUTED service is allowed in a case falling under 0. 5 Rule. 20 C. P. C. In a case where the court is satisfied that there is reason to believe that the defendant is avoiding service, substituted service is generally allowed. A situation may arise where summons cannot be served in the ordinary way. Generally, summons are sent to the defendant in the address shown in the plaint. In some cases, defendant with intention to prolong proceedings may avoid service of summons by adopting several dialatory tactics. In such cases plaintiff can definitely apply for substituted service In a case where summons cannot be served in the ordinary way, it is open to the plaintiff to apply for substituted service. When the court is satisfied that the defendant is avoiding summons or for any other reasons, summons cannot be served in the ordinary way, it is open to the court to order substituted service by affixing a copy thereof in some conspicuous place in the court house and also upon some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain or in such other manner as the court thinks fit. As provided under Sub-rule 1 (A) the court can direct advertisement in a newspaper. 0. 5 R. 20 (2) makes it clear that substituted service by order of the court shall be as effective as if it had been made on. the defendant personally. 0. 5 R. 20 contemplates affixture of a copy of the summons in some conspicuous place in the court house and also in Some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business. It also enables the court to order substituted service in such other manner as the court thinks fit. Thus, it can be seen that under 0. 5 R. 20 C. P. C. the court can order affixture as well as paper publication.

(3.) RESPONDENT examined as P. W. 1 stated that he knew about the decree only accidentally. Counsel for the petitioner pointed out that it was at the instance of the respondent that the case was transferred to the Sub court, Palghat and therefore he cannot now plead that he was unaware of the proceedings in that court. It has to be noted that the Sub Court, Palghat issued fresh summons to the respondent. P. W. I stated that he was under the impression that he would get summons and then only he need appear before the sub Court, Palghat. There is no evidence in the case to show that P. W. 1 was residing in the Rest House, Ernakulam where the affixture was done. Considering all aspects of the matter it has to be held that the lower court has rightly allowed the petition. I do not find sufficient reasons to interfere with the order of the court below. In the result, the C. R. P. is dismissed with no order as to costs. Dismissed. . .