CHANDERGUPT ARORA Vs. SHAHEEN KHAN

JUDGEMENT

(1.) THE 1st respondent filed O. S. No. 464 of 2002 in the Court of V Senior civil Judge, City Civil Court, Hyderabad, against the appellant and respondents 2 and 3, for the relief of declaration of title and recovery of possession of the suit schedule property. On the ground that the premises, where the appellant was residing and to which the summons were addressed, were found locked, on two occasions, the 1st respondent sought permission of the Court to effect substituted service of summons. On permission having been accorded, substituted service was taken out. Thereafter, the appellant was set ex parte. That was followed by an ex parte decree, dated 18. 09. 2003. At the stage of execution of the decree, the appellant came to know about it. Soon thereafter, he filed I. A. No. 58 of 2005 under Order IX Rule 13 C. P. C. The i. A. , was dismissed, initially on 18. 05. 2005. The appellant filed C. M. A. No. 507 of 2005, before this Court. Through order, dated 27. 02. 2007, this Court allowed the C. M. A. , and remanded the matter to the trial Court. The I. A. was dismissed, after remand, on 12. 03. 2008. Hence, this C. M. A. Sri P. Shiv Kumar, learned counsel for the appellant, submits that there was absolutely no basis for the trial Court, in ordering the substituted service, simply on the ground that the premises were found locked. He contends that the 1st respondent filed O. S. No. 34 of 1993, against the appellant, and in that suit, appearance was entered and written statement was filed. Learned counsel submits that the said suit was very much pending, when O. S. No. 464 of 2002 was instituted and the whole exercise of obtaining endorsements, as to locking of door, for effecting substituted service, was resorted to. He further submits that the newspaper, in which the publication was made, is totally unknown and did not have any circulation. It is alleged that the appellant does not know 'telugu', and still, the publication was made in a newspaper of that language. Sri P. Pandu Ranga Rao, learned counsel for the 1st respondent, on the other hand, submits that the manner in which the substituted service was effected, cannot be examined, or verified, at this stage. He contends that the appellant was very much aware of the suit, but was only watching the various stages in it. Learned counsel submits that the trial Court was satisfied, as to the requirement under Rule 20 of Order V of C. P. C. , before it effected substituted service, and that no interference is warranted with the order under appeal. The appellant figured as 1st defendant in the suit, filed by the 1st respondent. Relief of very far-reaching consequences, namely declaration of title and recovery of possession of an item of urban property, was prayed for. Respondents 2 and 3, who figured as defendants 2 and 3, appear to be almost formal parties. In the summons sent by the Court, an endorsement was made to the effect that the premises are locked. This was taken note of on 25. 06. 2002. On the next date of hearing, i. e. 20. 08. 2002, same thing was reported about the appellant. Respondents 2 and 3 herein were set ex parte. The trial Court directed fresh summons to the appellant, through a private courier. The record discloses that the bailiff is said to have affixed the notice on the door, on finding that it was locked and that on the speed post receipt, dated 03. 12. 2002, it was endorsed "not known".

(2.) AT that stage, the 1st respondent moved the Court seeking permission to effect substituted service. The paper publication in a Telugu daily, known as 'janata', was effected, on 08. 03. 2003. On 11. 03. 2003, the appellant was set ex parte. Ex parte evidence was recorded on 23. 07. 2003 and subsequent dates, and ex parte decree was passed on 18. 09. 2003. From the above, it becomes evident that the substituted service was effected, only on the ground that the door of the appellant is found locked twice and the postal authorities have endorsed "not known".

(3.) SERVICE of summons, in a suit, through publication is an extraordinary step. Before permitting such service, the Court must be satisfied that, either the defendant is purposefully avoiding the receipt of summons, or having regard to the facts of the case it is not possible to serve the notice. No finding was recorded by the trial Court, n either way. The permission was accorded, only on the ground that the door was locked.