DONALD GONSALVES Vs. PENHA DE FRANCA YOUTH CLUB

JUDGEMENT

(1.) HEARD forthwith.

(2.) IF the impugned Order is allowed to stand, in my opinion, justice will be a casualty. In the first instance, a suit was filed against unknown legal heirs of a person who was dead. The issue of cause of action in such a matter in the absence of any persons denying the right, character or title or interfering with the possession, may arise for consideration. Secondly, summons had to be issued to persons and if the addresses are not known, then only, service could be effected by means of substituted service. Nothing has been shown in the Code of Civil Procedure by the learned Counsel for the Respondents to point out that the summons served was according to law and the procedure prescribed by the Code of Civil Procedure. Mere publication even if it be by substituted service, if it does not meet the requirements of service on a person, would not be service. Substituted service is only when the address of the person is not known or the person on whom it is to be served is not found. It is not service to an unknown person.

(3.) IN the instant case, it must be remembered that prima facie the suit itself, as filed, raised serious question as to whether it was maintainable. Secondly, the service admittedly was not service according to law and that by itself, should have been a ground for setting aside the ex parte decree forthwith irrespective of whether the Petitioners showed cause or no cause. In the instant case, on the material on record, in my opinion, the Petitioners had shown sufficient cause irrespective of some omissions here and there. The ends of justice and the power which is conferred on the Court under Section 151 to render justice could not have been sacrificed in this manner. To my mind, therefore, this Order deserves to be set aside and the plaintiff who claims as the heir of the late Carolina is entitled to defend the suit and the interest in the property.