BALJIT SINGH BHATIA Vs. KULWANT SINGH

JUDGEMENT

(1.) AN award for the recovery of some amount was announced against the petitioner and two others and in favour of respondent No. 4. The same was filed in the Court for being made a rule of the Court. The Court ordered on 1st June, 1973, for summoning of the petitioner and others for 24th July, 73, on 23rd July, 73 the process server went to the house of the petitioner to effect service. As he was reported to be out of station, the process -server made a report on that very date saying that the petitioner had gone out of Amritsar. In the said report there is nothing to show that the process -server had gone to the house of the petitioner more than once and as to at what time he had gone to effect service. On 24th July, 1973, the Court passed the following order: -

(2.) ON the publication of the advertisement in the newspaper ex -parte decree was passed against the petitioner and others on October 27, 1973, as the petitioner and others did not put in appearance. Thereafter, application for executing the said decree was filed and warrant for execution was issued. The petitioner submitted application under Order 9, Rule 13 Code of Civil Procedure, for setting aside the ex parte order against him on May 24, 1974, in which it was contended that the award had been made the rule of the Court and ex parte decree had been passed against him illegally without notice to him and that he came know of the ex parte decree only May, 14, 1974, from plaintiff when the latter approached him to execute the warrant. This application was contested by the respondent decree -holders. On behalf of the decree -holders only Kulwant Singh respondent appeared in the witness box and made his statement. On behalf of the petitioner the report of the process -server was brought on the record and the petitioner also made his own statement. The trial Court dismissed this application on the ground that the petitioner had been served through publication in the newspaper in accordance with law and that the said substituted service was equivalent to personal service of the petitioner. This order has been challenged in the present revision petition.

(3.) SO far as the present case is concerned, no other attempt was made by the process -server to effect service of summons on the authorised agent of the petitioner, if any, or on any male member of the house in which the petitioner was residing or to paste a copy of the summons on the residential house of the petitioner. The process -server had gone to effect service on the petitioner only once. It was not expected of the petitioner to remain in his house all the 24 hours in anticipation that the process -server may arrive to effect service on him. It was incumbent on the process -server to have tried to effect service on the petitioner sufficient time before the hearing of the case. The summons could even be given to any male member of the house. As a last resort, summons should have been affixed on the outer door of his house. It is surprising that the Court without applying its mind to various provisions of Order 5 and without there being any circumstance to justify the inference that the petitioner was evading service, though it fit to pass the order regarding advertisement in the newspaper which is, in fact, resorted to when no other alternative is left. In the present case there was absolutely no justification for the trial Court to pass this order regarding advertisement in the newspaper. The said order was consequently patently without jurisdiction and was quite arbitrary.