SUBEDAR AMAR SINGH Vs. AVTAR SINGH

JUDGEMENT

(1.) THIS petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenges order dated 17.2.2003 passed by the Additional Civil Judge (Sr. Division), Kharar setting aside the ex parte judgment and decree dated 13.1.1999 passed in favour of the plaintiff-petitioner. The civil Judge issued notice of the application which was contested and then framed five issues. After conclusion of the evidence, she recorded the findings on various issues. The findings on issue No. 1 which is the most important issue read as under :-

(2.) MR . Munishwar Puri, learned counsel for the plaintiff-petitioner has vehemently argued that the address given by Avtar Singh defendant-respondent 1 in the litigation pending between him and Surjit Singh was furnished on the summons sent to Surjit Singh defendant-respondent 2. Therefore, Surjit Singh himself cannot plead that the address given on the Regd. A.D. cover as well as on summons was not complete or correct address. According to the learned counsel Village Haibowal Kalan is not a big village which may warrant mentioning of a specific house number. He has further submitted that the Civil Judge instead of setting aside the ex parte judgment and decree should have dismissed the application as infructuous because Avtar Singh defendant- respondent 1 has already executed the sale deed in respect of the land in favour of nominees of the plaintiff-petitioner and that mutation also been sanctioned in their favour.

(3.) THE aforementioned provisions came up for consideration before the Supreme Court in Yallawwa v. Shantavva, (1997) 11 SCC 159. The view taken by the Supreme Court is that the application filed under Rule 20 of Order V of the Code for substituted service should not be allowed in mechanical manner. Various steps laid down in Rules 12, 15 and 17 of Order V of the Code have to be exhausted and then satisfaction of the Court is required to be recorded that the defendant is keeping out of the way in order to avoid service or that for any other reason the summons cannot be served in the ordinary way. It has further been laid down that under Rule 19-A(2) proviso a declaration can be made by the Court on the non-receipt of acknowledgment within 30 days that the summons must have been duly served as has also been held in Basant Singh v. Roman Chatholic Mission, (2002) 7 SCC 530 : 2002(4) RCR(Civil) 572 (SC). Similar view has been taken by the Supreme Court in Ashok Nagar Welfare Association and another v. R.K. Sharma and others, AIR 2002 SC 335 : 2002(1) RCR(Civil) 512 (SC), wherein it has been held that without recording satisfaction that the defendant could not be served in ordinary case, the procedure under Rule 20 of Order V of the Code cannot be resorted to.