BHOGILAL GIRDHARLAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal under Sec. 104 read with Order 43 of the Code of Civil Procedure, has been filed against the order dated 31/03/1983, whereby the application moved for setting aside the ex parte decree was dismissed.

(2.) Special Civil Suit No. 44 of 1974 was filed by the State of Gujarat in the Court of learned Civil Judge (S.D.) at Godhra for a sum of Rs. 1,20,778.00 against the present appellant and the appellant Nos. 2 to 7 arrayed as respondents in the present appeal. According to learned Counsel for the appellant, the aforesaid suit was filed on 17/12/1974. In the first instance, the summons which were issued to the defendants could not be served because the address of the defendants as was given by the plaintiff was not complete and proper. Later on, the summons were sent by Registered Post Acknowledgment Due, but these summons sent by Registered Post Acknowledgement Due were returned as served or unserved or not, could not be ascertained and the plaintiff, i.e., the State of Gujarat applied for substituted service by publishing the summons in the newspaper and an order was passed on 5-8-1975 as given out by learned Counsel for the appellant, ordering for the substituted service. The trial Court ordered for the substituted service by publishing the summons in 'Jai-Hind' newspaper. Thereafter, the service was treated to be sufficient and on 30/12/1975, the suit was decreed against the defendants for a sum of Rs. 1,20,778.00. It is the case of the present appellant that when the decree was sent for execution in Rajkot Court, the notice was served upon the present appellant on 24/09/1978 and only then, he came to know that in the aforesaid suit, an ex parte decree has been passed against him. Thereafter, on 13/10/1978, the application was moved for setting aside the ex parte decree and this application for setting aside the ex parte decree was dismissed on 31-3- 1983. It is against this order dated 31-3-1983, passed in Civil Misc. Application No. 94 of 1978, by the learned Civil Judge (S.D.) at Godhra that the present appeal has been filed.

(3.) Learned Counsel for the appellant has submitted that the plaintiff had not given the proper address in the first instance, and therefore, the summons could not be served; but it is an admitted fact that the plaintiff had then applied for service of the summons by Registered Post and thereupon the application was made for substituted service by publishing in the newspaper and the same was published in 'Jai-Hind' newspaper and this substituted service by publishing in the said newspaper was considered to be sufficient service and the ex parte decree was passed. The argument of learned Counsel for the appellant is that the order of the substituted service passed in this case was not in conformity with the requirements of Order 5 Rule 20 of the Code of Civil Procedure, inasmuch as it was the fault of the plaintiff that the proper address could not be given in the first instance and the trial Court had not verified as to whether the summons which were sent by Registered Post had been returned served or unserved and there was no material to form the opinion that the defendants were keeping out of way for the purpose of avoiding the service and hence the order passed by the Court for substituted service was not in conformity with Order 5 Rule 20 of the Code of Civil Procedure. Had the factum of filing of the suit be known to the appellant, he would have certainly taken steps to appear before the Court to contest the claim and would not have allowed the ex parte decree to be passed and, therefore, the trial Court has wrongly rejected the application of the appellant for setting aside the ex parte decree. It is also said that the area which is mentioned in the summons is an area spread into two to four kilometres in the city of Rajkot and, therefore, the view could not be taken that the service was avoided and the impugned order dated 31/03/1983 deserves to be set aside.