JUDGMENT
Ashwini Kumar Sinha, J.
1. This Miscellaneous (First) Appeal is by the defendant against order dt. 15-7-80 in Misc. Case No. 18 of 1979, by which the court below has refused to set aside the ex parte decree da ted 11-4-79 passed in Title Suit No. 106 of 1978.
2. The original defendant (Raghunandan Singh) died during the pendency of the present appeal and, by order dated 8-8-85 his heirs and legal representatives were substituted.
At this very stage it is also pertinent to state that as a result of an order of this Court dated 16-5-84, an enquiry was ordered to be done by the trial court as there was a dispute as to whether the applicants (claiming to be the heirs of the appellant (Raghunandan Singh) were the real heirs and legal representatives of the deceased Raghunandan Singh or Smt. Sita Devi was the sole heir and legal representative of the aforesaid deceased Raghunandan Singh, who, according to the respondent, was the daughter of the deceased Raghunandan Singh.
Pursuant to that order the enquiry was held by the learned Subordinate Judge. Begusarai. He reported that the applicants (claiming to be the heirs of the deceased Raghunandan Singh) were the true heirs of the deceased and further reported that the alleged daughter Smt. Sita Devi was not the real daughter of the deceased Raghunandan Singh.
However, by order dated 8-8-85, this Court allowed the present appellants to be substituted as the heirs and legal representatives of the original sole appellant Raghunandan Singh (since deceased) and also ordered Smt, Sita Devi to be added as a party respondent in the present appeal as also as a defendant in T.S. No. 106 of 1978 in the event of the same being restored. This Court further ordered that Smt. Sita Devi may raise any separate disoute for her interest in the property of the deceased sole appellant and the learned counsel for the appellants did not put any objection to such an order being made.
Thus, Smt. Sita Devi was also added as party respondent in the present appeal (as respondent No. 2) and this Court also ordered that she would be at liberty to apply for addition as a party defendant in T. S. No. 106/78 in the event of the same being restored on the miscellaneous appeal being allowed. It was also ordered that she shall be at liberty to file any separate suit, if so advised.
3. The plaintiff (respondent No. 1) on 11-11-78 filed a suit for specific performance of contract of sale with respect to 2 Bighas, 17 Dhurs and 10 dhurkis of land situate in village Khambhar, P. S. and district Begusarai. Alternatively the plaintiff also prayed for a decree for recovery of a sum of Rs. 10,000/-from the defendant.
4. The plaintiff’s case was that on 25-6-78 the defendant agreed to sell him 2 Bighas, 17 Dhursand 10 Dhurkis of land (detailed at the foot of the plaint) for a sum of Rs. 15,000/-. On receipt of Rs. 10,000/-by way of advance, out of the aforesaid consideration money, the defendant executed an agreement in favour of the plaintiff on that date and agreed to execute the sale deed in his favour by 9-9-78 on receipt of the balance consideration money of Rs. 5,000/-.
The plaintiff’s further case was that he, thereafter, asked the defendant many a time to receive the balance consideration money from him and to execute the sale deed in his favour, as per the aforesaid agreement, but the defendant went on putting off the matter.
Resultantly, the plaintiff sent to the defendant a Pleader Notice on 12-8-78, but he refused to receive the same on 16-8-78.
5. The plaintiff’s further case was that the was and is always ready to get the sale-deed in question executed by the defendant on payment of the aforesaid balance amount of Rs. 5,000/-. As the defendant went on putting off the matter, hence the suit (on 11-11-78).
6. For deciding the point involved in the present appeal, which 1 will indicate hereafter, it will be most pertinent to deal, in detail, the various dates fixed in the suit for issuance of notice, service of notice and so on.
7. Before I indicate the submissions advanced on behalf of the respective perties, it may be stated that the trial court held as follows : —
“Despite the service of summons the defendant did not enter his appearance in the suit and as such it was taken up on 9-4-79 for hearing and was heard ex-parte.”
According to the trial court, on the evidences brought on the record on behalf of
the plaintiff, the case of the plaintiff stood proved and thus the suit was decreed ex-parte on 11-4-79.
The plaintiff was directed to deposit the balance consideration money of Rs. 5,000/-in court within 15 days from the date of the order (11-4-79) and the defendant, on receipt of the said money from the court, was directed to execute the sale-deed in favour of the plaintiff with respect to the lands in question and to deliver him the possession thereof within 60 days from the date of the order, failing which the plaintiff was allowed entitlement to get the said sale-deed executed and to get his possession over the lands in question through the processes of the court at the cost of the defendant.
The other operative part of the order passed by the trial court, was that — should the plaintiff fail to deposit the amount of balance consideration money in court as ordered above, he would forfeit his right to get the sale-deed executed in the manner aforesaid and will then be entitled only to recover the earnest money aforesaid from the defendant through the processes of the court.
8. On 17-4-79, the defendant (Raghunandan Singh) filed an application under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) for setting aside the aforesaid ex-parte decree dated 11-4-79, passed in T.S. No. 106/78. This was numbered as Misc. Case No. 18/79.
In short, the applicant’s (defendants) case was that on 12-4-79 one Mahendra Singh informed him (applicant/defendant) that a suit was being heard ex-parte against him at the instance of the plaintiff in the court of Subordinate Judge, Begusarai, Thus, it is pertinent to note that according to the defendants/appellants the date of knowledge about the aforesaid ex-parte decree in T.S. No. 106/78 was on 12-4-79.
The applicant’s/defendant’s/appellant’s case was that on having learnt about the aforesaid ex-parte decree, on 13-4-79 he came to Begusarai along with his nephew and enquired about the case with the help of the lawyer’s clerk and learnt in detail about a suit against the applicant. The applicant/ defendant categorically denied that any postal
peon had gone to him to serve the registered card or the envelop from any lawyer. The applicant/defendant further pleaded that due to the enmity the local Postmaster made endorsement on the alleged postal notices which were far from truth. It was further pleaded that if the applicant/defendant would have had any knowledge about the suit, he would nothave allowed the suit tobe decreed ex-parte.
This was the case put up by the applicant/ defendant/original appellant in the Misc. Case No. 18/79.
9. The plaintiff/respondent No. 1 filed a rejoinder to the aforesaid case pleaded by the applicant/defendant/original appellant. The plaintiff/respondent No. 1 denied that the defendants got the knowledge about the ex-parte decree on 12-4-79 through Mahendra Singh. The plaintiff’s case was that the defendant had full knowledge of the title suit in question since the date it was filed in the court of Sub-Judge and as the defendant had nothing to defend and so knowingly and purposely he left the suit to be heard ex-parte to vex the plaintiff.
The plaintiff, in his rejoinder, pleaded that the process server did go to the residence of the defendant along with the summons and the copy of the plaint but the defendant did not grant proper receipt regarding service of process and hence the Peon gave his service report.
The plaintiff denied that the local Postmaster (of Khambhar Post Office) was inimical with the defendant. The plaintiff’s further case was that the Postal Peon also went to the defendant with the registered card sent by the court and the notice in the registered envelope sent by the lawyer of the plaintiff, which the defendant knowingly and purposely refused to receive.
On such a case put up by the plaintiff, the plaintiff prayed for the dismissal of the miscellaneous case,
10. On the respective cases of the parties, as stated above, the real point for consideration int he present appeal is whether there was due service of notice on the defendant in the suit in question; in other words, whether the service was proper in the eye of law.
11. The learned counsel for the appellants submitted that a bare perusal of the different orders passed by the court in the suit on different dates would show that there was no due service of notice and that the service was not proper in the eye of law.
12. On the otherhand, the learned counsel for the plaintiff/respondent No. 1 submitted that (i) casting doubtsand throwing suspicions is one thing but suspicion cannot take place of proof. The learned counsel, by way of ellucidation, submitted that on suspicion alone the application under Order IXrule 13 of the Code is not to be allowed; and (ii) the service on the defendant, in the suit, is duly proved on the evidences on the record adduced by the plaintiff.
Thus, on the aforesaid respective submissions advanced by the learned counsel for, the respective parties, as already stated above, the main point to be decided is whether the service in the defendant, in the suit, was proper; in other words, whether there was due service of notice on the defendant in the suit.
13. In order to appreciate the aforesaid submissions advanced by the learned counsel for the respective parties, it is now most pertinent to deal with certain orders passed by the court on different dates in the suit in question (i.e. T.S.No. 106/78).
On 5-12-78 steps for issuance of notice having been taken by the plaintiff, the court issued summons fixing 5-1-79 as the nextdate for the appearance of the defendant.
The service peon reported as follows : —
“Mudalah Ke Sakunat Par Pahunchkar Talash Kiya. Mulakat Hua. Summon Arji Ke Majboon Se Agah Kiya. Agah Hokar Summon Arji Ka Tamila Lene Vo-Rashid Dene Se Inkar Kiye Isliye Ek Fard Summon Arji Makan Sakunati Men Latka Diva”.
This service report dated 3-1-79 has been marked Ext. A in Misc. Case No. 18/79.
At this very stage it is also most pertinent to mention that though the service peon does not mention the time at which he reached the defendant’s house and the learned counsel for the plaintiff/respondent No. 1 has not been able to show me from the record as to
how far the village (house) of the defendant was from the Begusarai court; yet the affirmation of the report was made the very same day at 3 P.M. It is also pertinent to mention that though the aforesaid service report is dated 3-1-79, yet the affirmation date (on the same) (alleged to have been service on refusal) is, surprisingly, 3-1-78; obviously, it seems to be a mistake for 3-1-79 (as the suit itself was filed, as already stated in the earlier part of the j udgment, on 11-1-78).
Any way, it is pertinent to quote the affirmation portion, as to deal with the point in question, it would be very very relevant.
The affirmation portion is as follows : —
“Affirmed before me by the above Peon on the 3-1-78 .
at 3 P.M.
Sd/- Illegible.
Nazir.
(the under lined portions are printed on the service report).
14. Such a report, as quoted above, was accepted as valid/proper by the court on 5-1-79. The serving peon was one Punit Lal Mishra (O.W.1).
15. The aforesaid service (on refusal, as quoted above) having already been accepted valid/proper by the court on 5-1-79; it is not understandable as to why did the court order issuance of another registered notice on the very same date, i.e. on 5-1-79, fixing 17-1-79 as the next date. It must be presumed that the court directed issuance of another notice of this registered notice, as requested by the plaintiff.
This registered notice was sent on a postcard. This post-card was registered and despatched on 6-1-79 (as it appears from the registered post-card itself) (which has been marked Ext. B in the Misc. Case No. 18/79). This notice by registered post (on a postcard) was also with acknowledgement due.
This also goes to the village address of the defendant and by post, posted at Begusarai for Post Office, Khambhar (via-Suhirda-nagar), district Begusarai. This notice sent by registered post on the Post-card is supposed to have been refused by the defendant on 8-1-79 (as it appears from the note of the Postal Peon, Baleshwar Sahu (O.W. 3) from the
endorsement made on the post-card as well as on the notice). It again looks very surprising that a registered letter posted at Begusarai for village Khambhar (Post-office Khambhar) district Begusarai, reaches the addressee (defendant) on the third day of its posting. I have already stated above, the learned counsel for the plaintiff/respondent No. 1 has not been able to show me anything from the record as to how far the village of the defendant is from the Begusarai court.
16. I have already indicated above that, while directing issuance of registered notice the court had fixed 17-1-79 as the next date in the suit and I have also just indicated above that the aforesaid registered notice (sent on post-card with A/D) was received back on refusal (refusal being dated 8-1-79.)
17. Thus, from the facts as stated above, there were two refusal reports (the first on the general summon and the second on the registered notice) on the record.
No application for substituted service under
Order V Rule 20 of the Code was filed by the
plaintiff yet, very very surprisingly, the
plaintiff, on 17-1-79, takes steps for substituted
service and deposited Rs. 16/- as cost. A the
cost of repetition, there was no order passed
by the court to the plaintiff to take steps for
substituted service nor was there any
application (muchless on affidavit) by the
plaintiff praying to the court to allow the
plaintiff to take steps for substituted service
under Order V rule 20 of the Code.
I fail to understand as to how the court again on 17-1-79 ordered as follows : —
“Wadi Ki Or Se Hazri, Prakashan Shulka MO. 16/- Rupya Jama Kar Nazir Rashid No. 819 Tatha Notice a Draft Dakhil Kiya Gaya. Pratiwadi Par Bheja Gaya Nibandhit Kard Inkari Prativedan Ke Sath Wapas Aya. Atah Draft Notice Ko dinank 5-2-79 Nishchit Kar Prakashan Hetu Begusarai Times Men Bhejen.”
18. On 5-2-79 (the date fixed by the earlier order dated 17-1-79) the publication cutting having not been received, the court ordered as follows : —
“Pratiksha Karen Tatha Dinank 16-2-79 Ko Prastut Karen”.
On 16-2-79 the publication cutting was received and the court ordered asfollows : —
“Wadi Ki Or Se Hazri Di Gayee. Prakshan
Ka Cutting Prapt Hua. Pratiwadi Upasthit
Nahin Huye. Dinank 23-2-79 Waste Ek
Pakshiya Sunbai.”
On 23-2-79 the order-sheet runs as follows : —
“Wadi Ki Or Se Hazri Di Gayee. Pithashin Padhikari Aaj Ka Chalu Karya Apane Nivash Asfhan Par Hi Sampanna Kiye. Dinank 5-3-79 Waste Ek Pakshiya Sunbai.”
On 5-3-79, the court being engaged in another case, fixed 9-3-79 for ex-parte hearing. Again on 9-3-79 the court, under the similar circumstances, i.e. being engaged in another case, fixed 28-3-79 for ex-parte hearing. On 28-3-79, under similar circumstances, the court fixed 9-4-79 for ex-parte hearing.
Thus, on 9-4-79, the case was taken up and the plaintiff examined three witnesses. After the three witnesses were examined by the plaintiff, the court, in its order dated 9-4-79, ordered as follows : —
“Ek Pakshiya Bahas Suni Gayee. Dinank 11-4-79 Waste Adesh”.
And on 11-4-79, the ex-parte order was passed and the suit (T.S.No. 106/78) was decreed ex-parte.
18A. Hence the application by the defendant under Order IX rule 13 of the Code on 17-4-79 (numbered as Misc. Case No. 18/79) which was dismissed by order dated 15-7-80. Hence the present appeal.
19. Normally, under Order V rule 1 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’), when a suit is duly instituted a summons is issued to the defendant to appear and answer the claim on a day specified therein and where a summons has been issued, the court directs the defendant to file the written statement on the date of his appearance and an entry to that effect is made in the summons. The defendant to whom a summonshas been issued under Sub-rule (1) of order V of the code may appear in person or by a counsel duly instructed and able to answer all the material questions relating to the suit.
Such was the normal procedure till before Rule 19A to order V of the Code was inserted in 1976. It is pertinent to quote Rule 19A of Order V of the Code (inserted in 1976) :
“19A(1) The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgement due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain :
Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.
(2) …..
Thus, a perusal of the proviso of Rule 19A shows that the issuance of summons for service by registered post is not required only, where, in the circumstances of the case, the court considers it unnecessary; otherwise under Rule 19A the Court, in addition to and simultaneously with the issue of summons for service in the manner provided in Rules 9 to 19 shall also direct the summons to be served by registered post, acknowledgement due, addressed to defendant or his agent empowered to accept the service at the place where the defendant, or his agent actually and voluntarily resides or carries on business or personally works for gain.
20. In the present case, the Court, on 6-12-78, ordered for issuance of summons on the defendant under Order V, Rule 1 of the Code ; in other words, the Court thought that under the proviso to rule 19A issuance of summons for service by registered post also was not necessary. It is true, the court could exercise its power under the proviso to Rule 19A in not ordering issuance of summons for service by registered post also, but it could do so if it considered it unnecessary in the circumstances of the case. In the instant case, the Court has not recorded anything to that effect and order for issuance of summons for service only under Order V, Rule 1 of the Code was passed.
21. On 5-1-79, the court accepted the report (on refusal by the defendant) as valid. Yet on that very date the court ordered issuance of another registered notice on the defendant fixing 17-1-79 as the next date. Such a procedure, after having accepted the service report (on refusal) as valid, is unknown in law. Secondly, a very short date for appearance isgiven in the notice, i.e. a gap of only 12 days and that, too, when a registered notice is being issued. Under Order V Rule 6 of the Code the date is so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day. This 12 days time only in the registered notice, in my opinion, could not be said to be sufficient lime given to the defendant to appear. There was no application/prayer by the plaintiff for issuance of registered notice nor was any direction of the Court to the plaintiff to take steps for issuance of summons for service on the defendant as such, yet the plaintiff files the Post card (duly stamped) with A/D in court for service by a registered post. This registered notice on post card, as it appears from the post card itself, is despatched on 6-1-79 and is supposed to have been refused by the defendant on the very third day, i.e. on 8-1-79.
21A. When two refusals of the courts were already before the Court the first on the summons issued under Order V rule 1 of the Code and the second on the registered notice was there any necessity for the Court to pass order for substituted service under Order V Rule 20 of the Code? The plaintiff had not filed any such application. The plaintiff yet took steps and deposited Rs. 16/- as cost (there being no order of the Court on him to take such steps) and the Court ordered the publication of notice in a Newspaper known as “Begusarai Times’ fixing 5-2-1979 as the next date.
There is nothing to show that this Newspaper (Begusarai Times) was such a daily Newspaper circulating in the locality in which the defendant was last known to have actually and valuntarily resided. One is only left to imagine and conjecture whether such a Newspaper was actually, available in the locality in which the defendant was last known to have actually resided. All those, in my opinion, go to show that the court, in fact,
was not aware of the successive orders vet. somehow or the other, the court was made to sign these orders. The aforesaid steps taken by the plaintiff were unwarranted yet, for the reasons best known to him he took these steps without there being any order of the court. Thus, I hold that the anxiety of the plaintiff to keep the defendant in dark is apparent from the order sheet itself.
22. The learned counsel for the defendants-appellants has submitted that under Order V Rule 19 of the Code, the return of the summons on refusal needed verification by the affidavit of the serving officer and as, in the present case, there is noaffidavit in the eye of law, of the process server, it wasenough to hold that the service of summons in the instant case was invalid; in other words, there was no due service of notice and that the service was not proper in the eye of law.
I have already quoted the service report (on the summons) in para 13 above and have also quoted the affirmation portion in the very same paragraph and hence needs no repetition here.
I have perused the service report (Ext.A) and the affirmation portion. In the eye of law, it is no affidavit at all. The serving peon has stated that he met the defendant who refused to take the summons and to sign the acknowledgement and that, therefore, the copy of the summons was hung in the house of the defendant: This was signed by two persons as witnesses Lalit Paswan and Cheta Singh and this report of the serving peon is affirmed by the Nazir of the court.
23. An affidavit is a statement in writing, with oath of the maker of the statement subscribed to it before an authority authorised to administer oath. The oath about the truth of the statement must be of the person making the statement. The Code of Civil Procedure has prescribed a special Form being Form No. 11 of Appendix ‘B’ of its first schedule for affidavit by process server of summons or notice. If there is an affidavit it means that the serving officer has stated something on oath, and if the statement turns-out to be false he could be prosecuted. That itself would put him on guard and make him adhere to the truth as far as possible and would minimise the chances of a false return of the service. It
is with the same object that the court is required to examine him on oath where he has not verified the return by an affidavit before the prescribed officer (Nazir). There are numerous instances where defendants and judgment debtors come to the court and state that the process server has not come to their places at all and that the alleged affixure is a myth and there are also several cases where such a contention of the defendants or the judgment debtors has been accepted by the courts. Such a danger would be minimised if the court adheres to the provision of Order V Rule 19 of the Code. If it makes it a point to question the serving officer as to what he did when he went to the village and what attempt he made to get at the defendant, there is no doubt that the service would be more real and effective than it would be otherwise. I cannot really over emphasis the importance of this provision. Very often there is room for thinking that the court does not even look into the return but simply says — service sufficient, defendant absent, set ex parte. That defeats the salutary purpose for which the detailed provisions have been enacted with anxiety by the law makers.
24. The mere affirmation by the Nazir about the service report, made by the peon on the back of the notice, is anything but not an affidavit as required in terms of the said form. In the instant case, the statement about the service of summons having begn effected on defendant in terms of Order V Rule 17 of the Code is of the process server, but the affirmation of the statement is not by the process server but by the Nazir. In my opinion, this is not an affidavit as required for the purpose of Order V Rule 19 of the Code.
This, by itself, in my opinion, is enough to hold that the service of summons in the instant case was invalid and hence there was no due service of notice on the defendant in the suit is question.
However, the learned counsel for the plaintiff-respondent No. 1 submitted that in the present case the affirmation being by the serving peon himself before the Nazir, the provisions of Order V Rule 19 of the Code were complied with. There is no force in the submission advanced by the learned counsel for the plaintiff respondent no. 1 as, on a
perusal of the affirmation portion it is abundantly clear that the affirmation is by the Nazir and not by the process server. Secondly, it is not in the Special form, i.e., in Form 11 of the Appendix ‘B’ of the first schedule of the Code which has prescribed the Form for affidavit by the process server of summons or notice.
Thus, I hold that in the present case there was no due service of notice on the defendant in the suit in question and the service, if any, was not proper in the eye of law.
25. The learned counsel for the plaintiff-respondent No. 1 has also submitted that the evidences adduced on behalf of the plaintiff prove the due service of notice on the defendant and has placed before me the evidences of the Court Peon, Postal Peon, the evidence of witnesses on the summon and the evidence of the plaintiff himself. The learned counsel submitted that no questions were put to these witnesses which could demolish their testimony and has further submitted that the manner of service was a question of fact.
There is no force in the submissions advanced by the learned counsel for the plaintiff-respondent No. 1. On a perusal of their evidences, I am satisfied that their evidences are not such which prove due service of summons/notice.
It would be pertinent to mention that on the service report of summons, the plaintiff Ram Balak Singh himself is an attesting witness for the fact that the defendant refused in accept the summons when the court peon Punit-Lal Mishra (O.P.W. 1) had gone to serve the summons. This Punitlal Mishra, the court peon (O.P.W. 1), in the examination-in-chief has stated that the plaintiff Ram Balak Singh was the attesting witness but, most surprisingly, in the cross-examination he stated that, in his life he had never seen the plaintiff. He further stated that he does not recognize Ram Balak Singh (the plaintiff) and that he cannot say that he was standing in the court. This by itself proves that the service report on the summons bv the court peon (Punitlal Mishra, O.P.W. 1) was a collusive one as is the case of the defendant-appellant. On a perusal of the evidences adduced by the parties, I am satisfied that there was no due
service of summons or even of notice by registered post on the defendant.
The onus to prove due service of notice was upon the plaintiff and on a perusal of the evidences (oral/documentary), I am satisfied that the plaintiff has not discharged the onus that was on him. On the other hand on a perusal of the evidences addused by the defendant, I hold that the defendant, by cogent evidence on the record, has proved non-service of summons on him.
26. The learned counsel for the plaintiff-respondent also tried to persuade me to accept his submission to the effect that the defendant had the knowledge of the suit since the date it wasfiled and submitted that the defendant (A.W.3), in his evidence, speaks about knowledge through Vidya Singh (A.W. 2) and also through Mahendra Singh, but the defendant did not put up such a case in his application under Order IX Rule 13 of the Code. The learned counsel submitted that the evidence in the suit on behalf of the plaintiff having been taken on 9-4-79 and not on 12-4-79, the evidence of A.W. 1 (on behalf of defendant) must be rejected; in other words, if the source of information (i.e. through Mahendra Singh) fails, it must be presumed that the defendant had the knowledge of the suit and the ex parte decree.
27. There is no force in this submission as well. The plaintiff’s witnesses may have been examined on 9-4-79, yet the knowledge to the defendant was given by Mahendra Singh on 12-4-79. In my opinion, there is no inconsistency in it and the defendant got the knowledge on 12-4-79 and not before.
Thus, I hold that the evidences adduced by the plaintiff also do not prove due service of notice on the defendant in the suit and I further hold that the service was not proper in the eye of law. The order for notice by registered post was wholly unwarranted if the summons sent under the provision of Order V Rule 1 of the Code was duly served in the eye of law (which I hold was not duly served) it was not needed if it was unnecessary yet it remains only surprise as to why the court directed issuance of notice by registered post.
Similarly, there being no application for substituted service, i.e., under the provisions
of Order V, Rule 20 of the Code how could the court allow the plaintiff to take steps for substituted service? There is no order by the court to the plaintiff to take steps for substituted service yet the plaintiff deposited Rs. 16/- as cost for the same. The plaintiff has not brought anything on the record to show that this Begusarai Times (the Newspaper) was such a dairy Newspaper which was in circulation in the locality in which the defendant was last known to have actually and voluntarily resided. In the circumstances, this service, too, was not a due service in the eye of law.
28. In the facts and circumstances of the present case, on an appraisal of the entire evidence, as already stated, in detail above. I am satisfied that the plaintiff/respondent No. 1 managed for issuance of notice by registered post and also for the publication of notice in the newspaper under the provisions of Order V Rule 20 of the Code and the court was made to sign those orders some how or the other without letting the court know of the earlier order/orders. The steps taken by the plaintiff/ respondent No. 1 with regard to notice by registered post and with regard to the substituted service were absolutely unwarranted. Yet, he took those steps without there being any order of the court.
Thus, I hold that the plaintiff/respondent No. 1 always tried to keep the defendant in dark about the suitand I further hold that, in the facts and circumstances of the case, there was miscarriage of justice appearing on the face of the proceeding itself and there was also abuse of the process of the court.
29. For the aforesaid reasons, the submissions advanced by the learned counsel for the plaintiff/respondent No. 1 fail and I hold that there was no due service of notice on the defendant in the suit in question and the service was not proper in the eye of law.
30. In the result, this appeal is allowed and the order of the court below dated 15-7-80 refusing to set aside the ex parte decree dated 11-4-1979 in T.S.No. 106/78 is set aside and the suit isrestored to its original file. The court below is hereby directed to proceed with the suit and decide it afresh in accordance with law.
However, there will be no order as to costs.
(The lines have been underlined by me for emphasis).