ORDER
A.N. Varma, J.
1. This petition is directed against the concurrent orders passed by the courts below rejecting an application filed by the petitioner’s husband Janaki Prasad and his two brothers Kanhaiyalal and Munnalal (respondents 4 and 5) under Order 9, Rule 13 of the Code of Civil Procedure for setting aside an ex parte decree dated 13-5-1977 passed in a suit instituted by Chandrika Prasad the respondent 3 herein. Both the courts below have concurrently found that the summonses of the suit had been duly served on the three defendants, namely, Janki Prasad, Kanhaiyalal and Munnalal. The trial court rejected the application under Order 9, Rule 43 on an additional ground, namely, that even if it be assumed
that the service through publication was treated as irregular, the application is liable to be dismissed on the ground that despite the knowledge of the suit while the same was pending, the application for setting aside of the ex parte decree was filed seven months after the passing of the decree.
2. Sri R. N. Singh, learned counsel for the petitioner submitted that the courts below have committed a patent illegality in rejecting the defendant’s application under Order 9, Rule 13 on the ground that they had been duly served through publication.
3. The criticism of the learned counsel was that the courts below were wrong in treating the service of the summons of the suit through publication as sufficient and valid. Learned counsel contended that substituted service by way of publication in newspaper could be ordered by the court only if the court feels 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 reason the summonses cannot be served in the ordinary way. In the present case, learned counsel contended such a contingency did not exist.
4. The argument is devoid of any merit. In order to examine this argument, I had asked the learned counsel for the petitioner to file certified copies of the order sheet and other papers relevant for this issue. Learned counsel did not file those papers. The same were, however, filed by the contesting plaintiff respondents. A perusal of the order sheet shows that on 9-10-1976 an application 12-D for issue of summons for publication in some local newspapers was filed by the plaintiff and the same was allowed by the Court. The order sheet of that date reads as follows : —
“9-10-76
By plaintiff for issue of summons for 12-D publication in some local newspaper 15-D allowed. Let the publication be made
in the paper next in the list. Steps
within 10 days.
Sd/Illegible”
5. The plaintiff took steps for publication in the newspaper called “Sandesh” Azamgarh fixing 21-12-1976 for written statement and 1-1-1977 for issues. No written statement was, however, filed on that date. The case was then ordered to be put up on the next date i.e. 31-1-1977. The order sheet of that date reads as follows : —
“Defendants served through the publication in “Sandesh” weekly. No. W.S. filed until , now. Put up on 31-3-1977 for issue and disposal of map and report.
Sd/- Illegible, MM.”
6. On 31-3-1977 the case was called out at 12.30 P.M. The defendants were absent. The map filed by the plaintiff was confirmed and the case was ordered to proceed ex parte against all the three defendants. On the next date i.e. 31-5-1977 the suit was decreed ex parte. Thereupon the application under Order 9, Rule 13 was filed by the three defendants, that is, Janaki Prasad, the husband of the petitioner and his two brothers, Kanhaiya Lal and Munnalal for setting aside the ex parte decree.
7. The order for service through the publication was passed upon the applications Nos. 12-D and 15-D filed by the plaintiff. This Court is entitled to assume that those applications must have contained the relevant averments based on which the plaintiff requested the Court to issue summons for publication. It is apparent that the Court must have been satisfied on the basis of those applications that the defendants are keeping out of the way for the purpose of avoiding i service or that the summons could not be served on the defendants in the ordinary way. The petitioner could have demonstrated by filing copies of those applications or otherwise that there was no material on the basis of which the Court could have ordered issue of summons in some local newspaper. The petitioner, however, did not choose to avail of that opportunity. She neither filed the applications moved by the plaintiff nor any other material to show that exercise of power by the Court under Order 5, Rule 20 of the Civil P.C. was irregular or illegal.
8. Sri R. N. Singh, learned counsel for the petitioner, however, referred to the order sheet of previous dates which indicated that the Court had not treated the previous attempts made to serve the defendants with the summons of the suit as sufficient and had asked the plaintiff to take fresh steps. That being so, he contended, the Court could not legally order service of the summons through publication.
9. I am unable to agree. From the mere fact that the previous attempts to serve the defendants were not treated by the Court as sufficient the Court was not precluded from ordering substituted service under O.V.R. 20, if there was material to indicate that the defendants were keeping out of the way for the purpose of avoiding service. The petitioner has failed to show that the Court below was so satisfied. The applications 12-D. and 15-D of the plaintiff on which the Court passed the order must have furnished the necessary material for such satisfaction. At any rate in the absence of any material to the contrary, I see no ground for disapproving the finding recorded by the lower appellate Court that service by publication on the defendants was valid and proper. Both the Courts below have held that the defendants had refused to accept the summons. The lower appellate Court had the entire record before it and there is no warrant for holding that the finding of the lower appellate Court is vitiated in law or Otherwise perverse.
10. Both the Courts below have also held that the defendants though aware of the suit had deliberately failed to do pairavi in the suit and absented themselves. This conclusion of the Court below is founded inter alia on the ground that during the pendency of the suit a Commissioner had visited the spot and had met Kanhaiya Lal. They had also come to know of the decree through the Amin. In spite of this the defendants who were all residing in the same house preferred to remain unconcerned about the suit. In any case, having come to know of the suit the defendants could have taken steps to find out the details thereof. Their conduct in making no effort whatever to find out about the suit
could, therefore, legitimately be treated by the Courts below as a ground for disbelieving their version that they had not come to know of the suit through the publication in the newspaper.
11. In addition, the lower appellate Court has also highlighted the conduct of the defendants which indicated that their sole aim was somehow to delay the proceedings. This finding is fully borne out by the record of the proceedings a copy of which was filed by the plaintiff respondent On this finding alone, the petitioner has become disentitled to any discretionary relief under Article 226 of the Constitution.
12. Learned counsel also placed strong reliance on a decision of this Court in the case of Smt. Jaggi v. Bhagwan Das reported in 1969 All LJ 1144 in support of his contention that mere notice of the suit is not enough and that if the defendants were not duly served the Court could not legally proceed ex parte against them. This decision has no application to the facts of the present case inasmuch as both the Courts below have found that the defendants had been duly served through publication. Service through publication is also a valid service. The Court below was, therefore, competent to proceed to dispose of the suit ex parte.
13. Lastly, it is noteworthy that the
application under Order 9, Rule 13 was filed by all
the three defendants. Kanhaiya Lal and
Munna Lal, the brothers of the petitioner’s
husband Janaki Prasad have, however, not
chosen to challenge the impugned orders.
To sum up, the impugned orders have not been demonstrated to suffer from any error of law or jurisdiction. Even otherwise, the present is not a fit case for exercise of discretion under Article 226 of the Constitution. 14. In the result, the petition fails and is dismissed with costs. The interim orders are discharged.
