DONGARMAL VIRCHAND OSWAL Vs. PUKHRAJ BHURMALJI JAIN

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 8.10.1985 passed by the District Judge, Pune, in Appeal No.643/1982. That appeal was filed by the petitioner challenging the judgment and decree dated 30.3.1982 passed by the 4th Additional Small Causes Judge, Pune, in Civil Suit No.2456/1931. That suit was filed by respondent Nos.1 to 3 claiming therein that they are owners of House No.181, Raviwar Peth, Pune, and that petitioner and respondent Nos.4 to 8 are tenants of a hall on the second floor of the suit house. The landlords sought a decree of eviction against the tenants on the ground of non-user of the suit premises by the tenants for a period of six months preceding the filing of the suit. In the plaint, the address of the tenant-defendants was given as that of the suit premises. However, in paragraph 5 of the plaint, the plaintiffs themselves had stated that the defendants have settled at Rajkot and that they are not living in the suit premises. Still, the address of the defendants was given as that of the suit premises. Obviously, the Bailiff could not serve the summons on the defendants at the address disclosed in the plaint and he found that the premises are locked. It appears from the record that on 13.11.1981, namely, the date on which the civil suit was filed, the counsel for the plaintiff-respondents stated that the defendants have settled at Rajkot. However, plaintiffs are not in a position to get their new address and therefore in the suit their last known address is disclosed and therefore the summons should be served on that address. On 30.11.1981, the Bailiff submitted the report saying that when he went to serve the summons on the defendants he found the house locked. On 16.12.1981, the respondent-plaintiffs filed an application before the trial court stating therein that the defendants are a residing on the address given in the plaint; however, they are avoiding to receive the summons and therefore it was prayed that the summons should again be served on the defendants on the same address and it appears that the application for service of summons on the same address was granted by the trial court by an order of the same date, namely, 16.12.1981 by a non-speaking order. Pursuant to this order, it appears that the Bailiff pasted the summons on the door of the suit premises and that was taken to be valid service on the defendants and therefore the suit was proceeded ex parte against them and ultimately decreed by the trial court. In the appeal, the appellate court confirmed that decree. Therefore, in this petition what is challenged principally is the order passed by the trial court proceeding ex parte against the defendants which is confirmed by the appellate court.

(2.) THE appellate court has held that the summons was served on the defendants under Rule 20 of Order 5 of the Code of Civil Procedure. Learned counsel for the petitioner submitted before me that an order under Rule 20 of Order 5 can be made by the court on being 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 reason the summons cannot be served in the ordinary way, ordering service of the summons by affixing a copy thereof in some conspicuous place in the court house and also on the conspicuous part of the house in which the defendant is known to have last resided. In the submission of the learned counsel, for satisfying the requirements of Rule 20 of Order 5, firstly, there has to be an application made by the plaintiff that the defendant is avoiding to receive the summons and therefore the summons should be allowed to be served by affixing. In the submission of the learned counsel, perusal of the application dated 16.12.1981 filed by the respondent-plaintiffs for substituted service shows that there is no prayer made in that application that the defendants should be served by affixing the summons to the residence of the defendants. She further points out that no satisfaction is recorded by the court as required by the provisions of Rule 20, Order 5 and therefore, in the submission of the learned counsel, the order is bad. Learned counsel for the respondent-plaintiffs, on the other hand, submitted that the defendants had not filed an application for setting aside the ex-parte decree; therefore they could not have filed an appeal against the ex-parte decree.

(3.) IN the result, therefore, the petition succeeds in part and is allowed. The orders impugned in the petition are quashed and set aside. Civil Suit No.2456/1981 is remanded back to the trial court for de novo trial and decision in accordance with law. Learned counsel for the petitioner undertakes that the petitioner and all other defendants in the civil suit shall appear before the court on 29th September 1997 and no fresh notice of the suit is necessary to the defendants in the civil suit. Rule made absolute accordingly with no order as to costs.