KARUPPAN CHETTIAR Vs. KARUPPIAH

JUDGEMENT

(1.) C.R.P.No.4497 of 1987 is filed against the order in C.M.A.No.26of 1987 on the file of the District Court, Pudukottai, confirming the order passed in E.P.No.5S2 of 1984 on the file of the District Munsifs Court, Pudukottai.

(2.) C.R.P.No.4498 of 1987 is filed against the order in CM. A.No.2() of 1987 on the file of the District Court, Pudukottai, confirming the order in E.A.No.633 of 1985 in E.P.No.582 of 1984 on the file of the District Munsifs Court, Pudukottai.

(3.) CERTAIN facts which are relevant need be stated at the outset: In E.P.No.582 of l984 on 15.11.1984 it was reported that the judgment-debtor is dead and on 29.11.1984 a memo was filed by the petitioner stating that the judgment-debtor is alive and notice was ordered. On 29.1.1985, there is an endorsement that the judgment-debtor refused to receive notice and hence not served. On that endorsement, the learned District Munsif had ordered notice by post and through court. On 28.2.1985, the notices were not returned, and the District Munsif had passed an order "await" and posted the case to 8.3.1985. On 8.3.1985, the endorsement is that the correct address was not given and hence notice could not be served. On that endorsement the learned District Munsif had ordered steps for substituted service by publication in "Dina Malar". Obviously, a petition was filed and substituted service was ordered by publication in Dina Malar. On 8.4.1985, the paper publication was filed and the petit ion was allowed, on the date on which substituted service was ordered, the endorsement was that because correct address was not given, notice was not served. Thus, at the first time, when notice was issued to the revision petitioner, it was returned with the endorsement that judgment-debtor was dead and then the decree-holders filed memo that judgment-debtor is alive and then notice was ordered and it was returned with an endorsement that judgment-debtor refused to receive notice. Then for the third time, notice was taken and it was returned with" an endorsement that correct address was not given. Only on the fourth occasion, the learned District Munsif had ordered steps for substituted service for publication in "Dinamalar" and then had ordered substituted service. Mrs.N.Krishnaveni, would submit that three times service of notice could not be secured and only on the fourth occasion, the learned District Munsif had ordered steps for substituted service and that the learned District Munsif was perfectly in order in doing so. Under 0.5, Rule 20, C.P.C. not only in a case where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service but also in a case where for any other reason, the summons cannot be served in the ordinary way, the court shall order summons to be served by substituted service. The learned counsel would submit that this case would fall under the clause " for any other reason the summons cannot be served in the ordinary way". On all the three occasions, the summons were returned for three different reasons. In the circumstances, is cannot be stated that the order of the court below. directing the party to take steps for substituted service cannot be considered an erroneous order. In Doraiswami Aiyar v. Balasundaram Aiyar, 52 M.L.J. 477, this Court had held that the advisability of effecting service by substituted service is a matter primarily for the trial court alone under 0.5, Rule 20 of the Civil Procedure Code and the appellate court has no jurisdiction to consider whether the order of the trial court for substituted service was on sufficient or insufficient grounds and it has only to see whether the order was issued according to law and whether the trial court was satisfied that the conditions required by 0.5, Rule 20 of the Civil Procedure Code were fulfilled'if so, then the order was legally made. Applying the ratio of this ruling, the order of the lower appellate court cannot be held to be erroneous. In Rajagopalachari v. Subramaniam, A.I.R. 1932 Mad. 472, it was held that 0.5, Rule 20 invests the court with jurisdiction to order substituted service where it is satisfied 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 that summons cannot be served in the .ordinary way. If, at the time the court is so satisfied then the service cannot be invalidated by showing that its belief was erroneous. On the facts of this case, the last two rulings are applicable and hence I am unable to accept the submission made by Mr.Selvarajan that the orders of the court below, directing the respondent to take steps for substituted service and ordering substituted service are liable to be set aside.