JUDGMENT
N.K. Kapoor, J.
1. This revision petition is against the order of Additional District Judge dated 8.9.1995 affirming in appeal the order passed by Additional Senior Sub Judge dated 17.5.1993 dismissing the application of the petitioner for setting aside the ex-parte decree dated 11.6.1991.
2. Briefly put, Gurinder Singh, Advocate, one of the judgment-debtors filed an application for setting aside the ex-parte decree dated 11.6.1991 on the ground that he was never served in person or even through substituted service.
3. Application was contested by the decree-holder stating that same is wholly mala fide and false. According to the respondent petitioner had knowledge of the pendency of the suit as reference was made to the pendency of the suit in reply to an application filed before Assistant Collector I Grade, Muktsar. Not only this, the counsel representing the decree-bolder informed the petitioner personally as well.
4. On the pleadings of the parties, the following issues were framed:-
(1) Whether there are sufficient grounds to set aside the ex-parte decree? OPA.
(2) Whether the application is barred by limitation? OPR.
(3) Relief.
5. Trial Court on considering the evidence led came to the conclusion that petitioner had knowledge of the pendency of the suit and so decided this issue against the petitioner. Application was consequently dismissed.
6. Appellate Court too found no ground to vary or reverse the finding recorded by the Court below and so dismissed the appeal.
7. Challenging the aforesaid finding of the Courts below, counsel for the petitioner has termed the finding so recorded to be wholly perverse and otherwise too the approach of the Courts below to be illegal and improper. Elaborating, the counsel argued that on perusal of the various zimni orders passed by the trial Court it becomes cleat that service had not been effected upon the petitioner. Thus, there was no occasion for the Court for resorting to service through publication in a newspaper. Ex-parte order/judgment deserves to be set aside on this short ground alone. Otherwise too, the Courts below have failed to draw an adverse inference against the respondent, especially when it has been proved on record and otherwise conceded too, that petitioner is a practising Advocate at Ferozepur whereas in the ex-parte judgment and decree he is shown to be a resident of a village. Similarly, the Courts below have erred in law in placing implicit reliance upon-the statement of Shri B. S. Gill, Advocate, representing the decree-holder. Even if it would be taken that Shri Gill informed the petitioner of the pendency of his civil suit that will not absolve the Court from performing its due function as provided under law. In any case, mere information given by an interested person can hardly be considered sufficient to obviate the need to effect service as enjoined by law. Impugned order, thus, deserves to be set aside.
8. Counsel for the respondent on the other hand argued that both the Courts on carefully scrutinising the evidence adduced have come to a definite conclusion that the petitioner knew of the pendency of the suit long before its decision and so the irregularity in service, if any, cannot be made the basis for setting aside the valid decree passed by the Court. Infact, as per Order 9 Rule 13 CPC such a decree is not liable to be set aside merely on the ground that there has been an irregularity in the service of summons, in case the Court is satisfied that defendant had notice of the date of hearing and had sufficient time to appear and answer the claim in the plaint. Thus, in the light of provisions contained in Order 9 Rule 13 CPC the Courts below have evaluated the evidence led and have come to the conclusion that petitioner had knowledge of the pendency of the suit. The counsel for the respondent further argued that in the instant case Shri B.S. Gill, Advocate, has appeared as RW1 and deposed that he had personally informed the petitioner of the pendency of the civil suit. Besides it, reply to the ejectment petition, Exhibit R1, specifically makes mention of the pendency of the suit. Thus, in the instant case the petitioner had knowledge of the pendency of the suit and also had sufficient time to appear and answer the claim set up by the plaintiff. Besides it, the Court before proceeding ex-parte infact made a last attempt to effect service upon the petitioner by insertion in a newspaper having sufficient circulation in the locality in terms of Order 5 Rule 20 CPC and it is thereafter that he had been proceeded ex-parte. So, the grievance of the petitioner is ill-founded and merely intended to re-open the matter which stands concluded by the judgment and decree dated 11.6.1991.
9. I have heard the learned counsel for the parties as well as perused the orders passed by the Courts below. Reference to some of the zimni orders before ordering ex-parte proceedings by the Court would indeed be appropriate. Notice to the defendant was issued for 21.9.1988 vide order dated 18.7.1988. On next date the plaintiff was directed to file copies of the plaint as well as process fee. On the next date of hearing i.e. 23.1.1989 the Court recorded ‘summons of the defendant not issued as copies of plaint not filed. Be filed and defendant be summoned for 29.3.1989’. Again, as per order dated 13.6.1989 the Court observed as under:-
“Summons of the defendant not issued by Hira Lal Ahlmad. He is warned to be careful in future. Defendant be again summoned for 2.8.1989 on old P.F.”
Subsequent orders passed by the Court are reproduced below:-
“Present counsel for the plaintiff Shri B. S. Gill for defendant No. 3. Defendant No. 5 in person.
Defendants 1, 2 and 4 not served for want of correct address. They be summoned for 25.9.1989 on P.F. and correct address.
SJIC 2.8.1989″
“Present: Counsel for the plaintiff. Counsel for defendant No. 3.
Defendants 1, 2 and 4 not served as P.F. and correct address not filed. This be done now in 7 days and above defendants be summoned for 3.11.1989.
SJIC”
“Present: Counsel for the plaintiff.
Summons not issued by Ahlmad.
Defendants 1, 2 and 4 be summoned for 13.12.1989 on old P.F. SJIC 3.11.1989″
“Present: Counsel for the plaintiff.
Summons of defendants received back unserved. Defendants 1, 2 and 4 be summoned for 7.3.1990 on P.F. and R.C.
SJIC 13.12.1989″
“Present: Counsel for the plaintiff Shri B. S. Gill, Counsel for the defendant No. 3. PF and RC not filed. Be filed. Defendant be summoned for 8.5.1990 on PF and RC.
SJIC
7.3.1990″
“Present: Counsel for the plaintiff Shri Gill and counsel for defendant No. 3. P.F. and R.C. not filed. It appears that the service in this case cannot be served through ordinary manner. Therefore, the remaining defendants be summoned through Nawan Zamana for 13.6.1990 on P.F. & R.C. within two days.
SJIC 8.5.1990″
“Present: Counsel for the plaintiff. Counsel for defendant No. 3.
Publication not issued by the Ahlmad. He is directed to explain within two days. Fresh publication be issued for 31.7.1990 on old P.F. and R.C.
SJIC 13.6.1990″
“Present: Counsel for the plaintiff and Shri B. S. Gill, counsel for defendant.
Defendants 1, 2 and 4 are served through publication. But they are not present. Case called several times. They are proceeded ex-parte. 7.8.1990 for written statement.
SJIC
31.7.1990″
10. A perusal of the zimni orders passed by the Court reveal that summons in the first instance were not issued to the defendants as the plaintiff failed to file copies of the plaint and at the next date of hearing Ahlmad of the Court somehow did not issue summons of the defendants. Thereafter, the Court noted that neither the process fee nor the correct addresses of the defendants have been filed by the plaintiff. Even on 8.5.1990 as per zimni order, process fee as well as registered covers were not filed by the plaintiff, all the same Court formed a view that the service cannot be effected upon the defendants in an ordinary manner and so directed that the defendants be summoned through a publication in a newspaper. Even on the subsequent date this order was not complied with. So, on reading of the various zimni orders it gives an impression that whereas no sincere attempt has been made to effect service upon the defendants by an ordinary process, even the order passed to effect service by publication is contrary to the provisions of Order 5 Rule 20 CPC. As per Order 5 CPC service in the first instance is to be effected upon the defendant personally. It is only when a defendant refuses to accept service or cannot be found that the Court permits that service be effected upon him by affixing a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carry on his business or personally works for gain (Order 5 Rule 17 CPC). This exercise too has not been undertaken. Even no attempt has been made to effect service upon the defendants by sending summons by registered post. In this view of the matter, resort to the provisions of Order 5 Rule 20 CPC was not warranted. As per Order 5 Rule 20 CPC if the Court has come to the conclusion that defendant is keeping out of the way for the purpose of avoiding service or that summons cannot be served in the ordinary way that an order has to be passed for affixation of a copy of the summons in some conspicuous place in the Court-house and also upon the conspicuous part of the house in which the defendant normally resides. Under Order 5 Rule 20 Sub-clause (1-A) CPC the Court can also order service by an advertisement in a newspaper having sufficient circulation in the locality where the defendant resides. No doubt the publication has been made in a newspaper, named, Nawan Zamana, but there is no sufficient material on record to suggest that the newspaper had sufficient circulation in the locality where the defendant used to reside. In any case, the provisions of Order 5 Rule 20 CPC could be resorted to only in case the Court had come to the conclusion that service cannot be effected upon the defendants in an ordinary manner.
11. Both the Courts while examining the issue of proper service have placed reliance upon the deposition of Shri B. S. Gill, Advocate, RW1 and some of the documents, Exhibits Rl, R2 and R3, wherein a mention was made of the pendency of the suit. Shri Gill, of course, has deposed that he had informed the petitioner of the pendency of the suit. Whether the statement of Sri Gill absolves the Court of various irregularities and illegalities committed by ordering service by publication. The Court proceeding ultimately leading to the passing of the order for effecting service by publication in a newspaper is to be judged in the light of provisions contained in Order 5 CPC. Examined so, there is no manner of doubt that the Court has not only acted irregularly but as well as guilty of illegality for invoking the provisions of Order 5 Rule 20 CPC in the context of the present case. Even if there is some substance in the statement of Shri B. S. Gill that he had informed the petitioner but all the same the same does not absolve the Court of performing its duties. Concededly, the petitioner is a practising Advocate at Ferozepur but for reasons best known to the plaintiffs his address was given of a village. Thus, per se no attempt was made to effect service upon him though he had been practising in the same Court. Ex-parte decree has deprived the petitioner of a valuable right to contest the suit on merit. The respondent cannot derive any benefit from the proviso to Order 9 Rule 13 CPC as the present case is not of irregularity alone but illegality as well. Accordingly, I accept the revision petition, thereby setting aside the ex-parte decree dated 11.8.1991.
12. Parties are directed to appear before the Court on 30.1.1997.
13. Since the matter is being re-opened the Court shall take appropriate steps to decide the matter afresh without any further unjust delay.