ASHOK SHAHI Vs. HARMINDER PAL

JUDGEMENT

(1.) It is not disputed that the respondent judgment-debtor remained in jail from 06.09.2001 till 06.03.2003 in FIR No. 268 dated 06.09.2001 registered under Section 307, 467, 468, 471 IPC and Section 25 of the Arms Act in Police Station Civil Lines, Amritsar. The petitioner was a plaintiff in the summary suit brought under order 37 Rule 2 C.P.C. on 13.09.2001. The defendant-Arjinder Singh was holder of power of attorney of two co-sharers of the property which they had agreed in writing to sell to the petitioner for a sum of Rs. 1,20,250/- to the buyer, being the total consideration for transfer of plot. However the plot was encumbered and could not be sold and this brought the petitioner to recover money from Arjinder Singh through a summary suit. The defendant Arjinder Singh was sought to be served at his address mentioned in the plaint. As the petitioner was unable to serve Arjinder Singh at the given address he prayed for and was granted substituted service by publication in a news paper. The trial Court proceeded ex-parte against the defendant-Arjinder Singh after effecting service through publication. Ex-parte decree was passed on 17.07.2003 as Arjinder Singh was in Jail. Arjinder Singh received notice of execution proceedings from the trial Court whereupon he learnt that he had been proceeded ex-parte. He moved an application under Order 9 Rule 13 C.P.C. for setting aside the ex-parte order. He came to know through the petitioner that execution petition is pending in the trial Court on the ground that he had no knowledge of the proceedings and therefore could not contest the case nor file an application for leave to contest the case. The application has been allowed by the learned Civil Judge, Junior Division, Amritsar vide order dated 28.01.2012 against which the present revision is directed.

(2.) I have little doubt that the defendant-Arjinder Singh was served in the summary suit. No efforts were made by the plaintiff to serve Arjinder Singh in jail as he knew of it. The nature of the transaction between them and the fact that they lived in the same city would suggest that plaintiff knew of it given the proximity of the date when Arjinder Singh was sent injudicial remand and a week thereafter, summary suit was brought. Be that as it may, if there is failure on the part of the plaintiff to serve the defendant in the normal way, only then can question of substituted service arise. Service through publication has itself caused miscarriage of justice since admittedly the defendant was in jail when the publication was effected and he may not have any access to news papers in jail.