KISHNA Vs. ARJUNDAS

JUDGEMENT

(1.) THIS revision petition arises out of proceedings in a suit in which the trial court issued a temporary injunction against the non-applicants and which was subsequently in appeal vacated by the learned Additional Commissioner by his order dated 4.7.1960. The learned counsel for both the parties except narrating the facts of the case did not argue on merits. The main contention of the learned counsel for the applicants is that out of the five plaintiff-applicants no proper service was effected on Surja s/o Kishna and Sardara s/o Peeru, who were also parties in the lower appellate court and yet a decision was given without affording any opportunity to them to be heard. It was pointed out that the summons in the name of all the applicants and specially in the name of these two persons were issued through the Tehsil and in addition through the sub-Inspector Police concerned and without waiting for their return on or before the date of hearing the case was decided by the learned lower appellate court. We find a good deal of force in this contention. It appears that by an order of the court dated 30.6.60 processes were ordered to be issued for service on all the non-applicants including Surja and Sardara. The date of hearing fixed in the case was 4.7.60. The summons which were sent to the Tehsil were not served in person on Surja and Sardara. The report of the process server on the back of the summons was to the effect that these two persons were not found at their place of residence and that the summons were affixed on their last residence. THIS is dated 4.7.60 and was endorsed on the same date for transmission to the court of the Additional Commissioner, Jaipur. It is clear beyond doubt that these summons could not reach from Kotputli to Jaipur on the same day when the case was being heard in the court of the Additional Commissioner. The summons which were issued for service on these very persons through Police also bear an endorsement dated 1.7.60 to the effect that Surja was not found on the residence and it was pasted on his residence. The endorsment of the Officer incharge Police Station Kotputli is dated 1.7.60 and it does not appear from the record whether it had reached the court on or before the date of the hearing. On the basis of these facts the learned counsel for the applicants vehemently urged that in the first place' there was no provision of law under which any processes could be issued by a Revenue Court for service on a party through Police official and secondly the substituted service if any could not be effected without proper order of the court issuing the process. It was also pointed out that the service if any was also defective and illegal and the lower appellate court acted without jurisdiction in hearing the appeal. We are rather constrained to observe that the lower appellate court in our opinion not only ignored the provision of law as contained in Order 5 Rule 15 to 27 but also completely overlooked Rule 172 to 178 of the Rajasthan Revenue Courts Mannual. According to Rule 172 service of processes issued by the revenue court shall ordinarily be done through Tehsil concerned. THIS rule is only subject to an exception as given in Rule 175 which permits a court to have a process executed by a special messenger in a case in which the court either suo-moto or otherwise records an order that for the convenience of the parties or for some reasons it is expedient that such processes shall be executed by a special messenger. THIS rule namely 175 does not envisage service through Police Officials. In fact we have never come across any such procedure having been followed by any revenue court in the matter of effecting service on parties in a case pending before it. The learned lower court seems to have adopted a rather novel procedure. Rule 178 lays down the mode of the service of processes and provides that the provision of the Code relating to the service of summons etc. should be carefully complied with. It draws pointed attention of the revenue courts in particular to Order 5 Rules 15, 17 and 18 of the Code. O. 5, R. 16 contemplates three distinct classes of service namely on the party in person, on the duly appointed agent, or upon any other person on behalf of the party. In case any such person as mentioned above refuses to sign the acknowledgement, or where the serving officer after using! all due and reasonable diligence, cannot find the person and there is no agent empowered to accept service of the summons on his behalf,nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the party ordinarily resides or carries on business or personally works for gain. THIS is the substance of O. 5 R. 17. The provisions of this rule is attracted) only when the person concerned refuses to sign the acknowledgement which is not the case in the present proceedings. Then come the provisions of O.5 r.20 known as substituted service and can be invoked only by an order of the court on satisfaction that the party is keeping out of the way to avoid service or that for any reason service cannot be made in the ordinary way. In the present case no such order was given by the court. It was observed in A.I.R. 1914 Madras-159-that where the return of a serving officer shows that the summons was affixed to the door of the defendant's house because he was not in the village the summons cannot be said to have been duly served in terms of O. 5 R. 17 C.P.C. Similarly in I.L.R. 21 Bombay page 223 it was observed that where a defendant is temporarily absent from home and is hot represent at his house by an agent or male member of his family a Judge is not justified in treating the fixing of a summons to his door as due service. ¦ The summons should be again sent to the defendant's house to be served upon him when the inquiries made show that he is likely to be at home and to be found there. On the basis of these authorities and many more which need not be cited here, it is clear to us that no service was effected on these two applicants in the manner as provided in O. 5 R. 17 C.P.C. As regards substituted service it is also clear to us that there was no order of the court directing service in this manner. In the absence of any such order the service if any was illegal. AIR 1931 Patna 420 is an authority on this proposition of law. It now brings us to another important issue namely whether the lower appellate court could utilise the agency of the police in effecting service on the aforesaid two non-applicants. The rules prescribing the agencies through which service shall be effected by revenue court is clear on the point and a contravention of the same not only renders service improper and irregular but tantamount to an illegality and irregularity in the exercise of the jurisdiction. It was observed in 1925 Rangoon 325 that service of the summons is irregular if it is not made by an officer of the Court. Admittedly a police official is not an official of the court for effecting service in revenue cases and whatever may be the nature of the endorsement on the back of the processes the service is bad in law. The learned counsel for the opposite party however frankly conceded that in case we go into these technicalities the service was indeed bad and could not confer any jurisdiction on the lower appellate court to hear the appeal without effecting proper service on two of the applicants who were un-represented by any counsel. Under the circumstance we find no option but to set aside the decision of the lower appellate court and remand the case back to it with the direction to issue processes in the name of Sardara and Surja and after effecting service on them in the manner as contemplated by the rules referred to above and the provisions of O. 5 C.P.C. rehear the case and decide it according to law. It was however, suggested at the bar that as Shri Ajitsingh, Additional Commissioner has expressed his opinion on the merits of the case, it will be desirable for the ends of justice to have the appeal decided by Shri Onkarsingh the other Additional Commissioner. We do not see any harm in accepting this request as well. In the result we direct that the appeal shall now be heard and decided by Shri Onkarsingh Additional Commissioner, with due regard to the observations made above.