SATBIR SINGH Vs. KIDAR SINGH

JUDGEMENT

(1.) THIS petition has been directed against the order dated 12. 9. 1997 passed by the learned Additional District Judge, Rohtak. By this order, the learned Additional District Judge has set aside the order dated 30. 3. 1996 passed by the learned trial court by which the application filed by the respondent-defendant under Order 9 Rule 13 CPC for setting aside the ex- parte decree dated 7. 4. 1989 was dismissed. Notice of this petition was issued to the respondent.

(2.) MR . Saini, the learned counsel appearing on behalf of the petitioner submits that the observation given by the learned lower appellate Court about Ex. R-l was not correct as Ex-R-1 has been duly proved by RW-1 Hari Ram, Process Server and it also bore the stamp of the Process Server. He further submits that the affidavit with regard to the service given by Ram Kumar was duly attested by the Clerk of the Court who was authorised. The learned counsel further submits that the learned lower appellate court was not correct in holding that the summons have been accompanied by a copy of the plaint. The authority relied upon by the learned appellate court was with regard to the unamended provisions of the CPC whereas under the amended provisions of CPC, this requirement is curable. In support of this submission, he placed reliance on a judgment of this Court in Risaldar Pakhar Singh v. Bhajan Singh (dead) and Ors. , (1987-1) 91 P. L. R. 146. The learned counsel further submitted that the lower appellate court was also not correct in observing that the summons should have been sent by registered cover as this requirement was not a condition precedent. In support of this submission he has placed reliance on a judgment of Calcutta High Court reported in Sarbeswar Ghosh v. Manab Kumar Sajjan and Anr. , A. I. R. 1992 Calcutta 82. The learned counsel, therefore, contended that the learned trial court was not required to record reasons while passing the order for substituted service.

(3.) AFTER hearing the learned counsel for the parties and having perused the impugned order, I do not find any infirmity or illegality in the well reasoned order passed by the learned lower appellate court. From the copies of the jimni order produced before me, I find that this case was registered on 26. 9. 1988 and the defendants were summoned on that date for 4. 11. 1988 vide process fee. On 4. 11. 1988 defendant No. 2 who was duly served was represented by his counsel but defendant No. 1 has not yet been served. Without recording any reasons, the learned trial court on that date itself directed that defendant No. 1 be summoned through munadi for the date fixed. By reading this order, I am of the opinion that the learned trial court fell into grave error by ordering substitute service on the very next date without recording any finding as to in what circumstances, the defendant No. 1 could not be served by ordinary process. Order sheet further shows that defendant No. 1 was not even directed to be served by registered post on 4. 11. 1988 and straightaway, the learned trial court directed that he be summoned through munadi. Keeping in view these facts, I am of the opinion that this fact itself was sufficient for the learned lower appellate court to come to the conclusion that there was no stage for order in a substitute service on 4. 11. 1988. Besides the impugned order is a well reasoned order and has been passed after referring to detailed provisions of CPC and various judgments referred to in that judgment. Accordingly, this petition is dismissed.