JUDGMENT
R.S. Garg, J.
1. Being aggrieved by the order dated 15-4-1994 passed in M.J.C. No. 8/90 by the learned Third Additional District Judge, Durg, rejecting the appellant’s application filed under Order 9, Rule 13, C.P.C., the appellant has preferred this appeal under the provisions of Order 43, Rule l .C.P.C.
2. The appellant moved an application before
the trial Court under Order 9, Rule 13, C.P.C. inter alia pleading that the summons of the suit were not served upon him as he did not subscribe to daily newspaper ‘Desh Bandhu’, he had no knowledge that he was said to be served by substituted service, and as he had no knowledge about the pendency of the proceedings, the ex parte decree passed against him deserved to be set aside. The application was contested on merits. The appellant in support of his case examined his ownself and also examined one Amrit Pratap Das. The witnesses stated that it was Amrit Pratap Das who informed the plaintiff about passing of the ex parte decree. After recording the evidence and hearing the parties, the learned trial Court found that there was no sufficient cause in favour of the defendant to remain absent when the suit was called on for hearing, in view of the finding it rejected the application for setting aside ex parte decree.
3. Shri Agrawal, learned counsel for the appellant, contends that the order dated 19-4-1989, according to the plaintiff’s application in the suit was patently illegal and was contrary to the provisions of Order 5, Rule 20, C.P.C. He submits that the Court without recording its satisfaction and even without directing affixture of the summons in some conspicuous place in the Court-house, proceeded ex parte. According to him as the Court did not record its satisfaction for applying Order 5, Rule 20, C.P.C. the proceedings were vitiated and the decree deserves to be set aside. On the other hand, Shri Bhargava, learned counsel for the respondent-plaintiff submits that the trial Court having found that the summons were issued thrice, returned unserved with the endorsement that the address was incomplete was of the opinion that in view of the admission made by the defendant that the address given in the summons was the same where he resided or carried on business, was justified in ordering substituted service. He submits that there were no good cause shown or assigned by the defendant for setting aside the ex parte decree, therefore, the trial Court was justified in rejecting the application. I have heard the parties at length.
4. Order 5, Rule 20(1) provides that where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that
for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and on the house where the defendant is known to have last resided. Sub-rule 1(A) provides that where the Court acting under Sub-rule (1) orders service by an advertisement in a newspaper, it has to be a daily newspaper circulated in the locality in which the defendant is last known to have actually and voluntarily resided.
5. The provisions are two fold. According to Sub-rule (1) the Court has to record its satisfaction that there were reasons to believe that the defendant was keeping out of the way for the purpose of avoiding service or in the alternative, the Court is required to record its satisfaction that for any other reasons the summons could not be served in the ordinary way. Proceedings dated 19-4-1989 recorded in the suit only read that the plaintiff moved an application under Order 5, Rule 20, C.P.C. with an affidavit for effecting service by publication. The Court without recording its satisfaction allowed the application. It also directed that the summons be published in daily newspaper ‘Desh Bandhu’. The Court below has failed to record its satisfaction though it was mandatory for it under the law. Unless, the Court is satisfied that there were reasons to believe that the defendant was keeping out of the way for the purpose of avoiding service or that for any other reasons the summons cannot be served in the ordinary way, it could not order service by any other mode. Not only this, according to Rule 20 of Order 5 the Court is duty bound to order that summons be served by affixing a copy thereof in some conspicuous place in the Court-house and by publication of the same in some daily newspaper. The proceedings dated 19-4-1989 do not show that the Court ever ordered affixture of copy of the summons at some conspicuous place in the Court-house. The records of Civil Suit do not show that the summons sent for publication in the newspaper were ever affixed in some conspicuous place in the Courthouse. The trial Court committed breach of the mandatory provisions of Order 5, Rule 20 in directing publication of the notice. Firstly, because it did not record its satisfaction and secondly because it did not order affixture of the copy of summons in conspicuous place in the
Court house. It is trite law that service would be deemed to be valid if the order preceding the service is in accordance with law. It is not only the service which is required to be proved but the parly relying upon the substituted service has to prove that the order directing substituting service was also in accordance with law. The trial Court, in the opinion of this Court, was not justified in rejecting the application for setting aside ex parte decree. The appeal deserves to and is accordingly allowed. The trial Court is directed to restore the suit to its original number. As both the parties are present before this Court they are directed to appear before the trial Court on 16-3-1998. No further notice to the defendant would be necessary. Within three weeks from the date of appearance, the defendant shall file his written-state-ment. If he fails to file the written-statement, the trial Court shall be free to close his rights and deliver a judgment under Rule 10 of Order 8, C.P.C. As the suit was instituted in the year 1987, it is directed that from the date of appearance of the parties, the trial Court shall dispose of the suit within a period of six months. The Registry is directed to remit the records back to the trial Court so as to reach the said Court on or before the date of hearing.
6. C.C. to both parties within seven days, if applied on urgent charges.