TaxTMI 
TaxTMI 
2018 (8) TMI 1888
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.... were duly served. The trial Court decreed the suit ex parte on 8th November, 2011 after considering the affidavit-in-chief of the plaintiff and the documents on record. Nearly two years after, the respondent filed an Application for setting aside the said ex-parte order along with the Application for condonation of delay. The delay was condoned by the trial Court and the Application was numbered as M.A. 684 of 2013 which was contested by the plaintiffs and the trial Court accepted the case of the plaintiff that the summons though was served on the defendant, he failed to appear and as it was good service, the Application was rejected by order dated 16th February, 2015. Appeal No. 340 of 2015 was preferred by the respondent/defendant and after hearing both the sides, the Appellate Court allowed the said Appeal with cost and quashed and set aside the order of Small Causes Court, Pune and directed the respondent to file the written statement. The plaintiffs have challenged the said order in Appeal. 4. The learned counsel for the petitioners has submitted that the order of the trial Court is well reasoned in which the trial Court has held that the defendant was duly served by the sum....
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....ale Nagar and therefore, he was never served with summons and therefore, he could not attend the said Civil Suit. He had knowledge of the ex parte decree when some mediation talks were going on between him and plaintiffs in the criminal Revision Application filed by the defendant before Jalgaon and he, therefore, immediately filed the Application for setting aside the ex-parte decree. The delay was condoned and the said ex parte decree was set aside by the District Judge. He has submitted that the defendant never avoided to accept the service and the plaintiffs did not attempt to obtain the true and correct address of the defendant. He submitted that the plaintiffs have failed to show compliance of Order 5 Rule 20 of the Code of Civil Procedure. The learned counsel has submitted that it is binding on the Court to record its satisfaction to believe that there is avoidance of service for some reasons, the summons was not served; If it is not, then the trial Court cannot pass the order of substituted service. In this case, the order of substituted service was casually passed, which should not have been. In support of his submission, the learned counsel relied on the following decision....
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....mons 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 also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. [(1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.] (2) Effect of substituted service-Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. (3) Where service substituted, time for appearance to he fixed-Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require. [20A. Service of summons by post: Repealed by the Code of Civil Procedure (Amendment) Act, w.e.f. 1st. February, 1977] 10. Thus, the court should be satisfied ....
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....x, Punjab (supra), wherein the Hon'ble Supreme Court while interpreting Order 5 Rule 20(1) has held as follows: "It seems to us that the last ten words in sub-rule (1) of rule 20, do confer a discretion on the Court to adopt any other manner of service. The sub-rule prescribes one manner which the Court may follow and this manner consists of two acts; (1) affixing a copy of the summons in the court-house, and (2) affixing it in some conspicuous part of the residential house or the business premises of the defendant. If the High Court were right we would expect that the word "also" would be repeated and inserted between the word "or" and "in" in the last ten words. The alternative manner which the Court decides to adopt for serving must of course be such as gives notice to the person to be served." 14. On the point of setting aside of ex-parte decree, the Hon'ble Supreme Court, in the case of International Woollen Mills (supra), has held that it is possible even though the defendant has not entered evidence, the plaintiff may prove its case through oral and documentary evidence. If after consideration of oral and/or documentary evidence, an ex parte decree is passed, it w....
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....n that under Order 5 Rule 20, it was not necessary to affix a copy of the summons at the Court house and at the house where the defendant is known to have last resided, once the Court had directed service by publication in the newspaper really begs the question. There was a clear breach of the procedure prescribed in Order 5 Rule 17 even antecedent thereto. Besides, the order of the Court does not indicate due application of mind to the requirement of the satisfaction prescribed in the provision. The High Court was, in these circumstances, justified in coming to the conclusion that the ex parte judgment and order in the suit for specific performance was liable to be set aside." 18. Order IX, R.13 CPC read as under: "Setting aside decree ex-parte against defendant: In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to ....
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....lways substituted service, but service which has been effective in bringing the claim to the knowledge of defendant. The Judicial Dictionary, 12th Edition explains that the word "duly" is very significant and excludes any arbitrary exercise of power is very significant and it excludes any arbitrary exercise of power. 23. The service is neither an empty formality nor procedural ritual but the soul of the service is to have the knowledge of the proceedings to the defendant or the contesting party. Therefore, there may be a service laid down as per the procedure, however, still there is no communication of the proceedings to the other party and, therefore, the knowledge is absent. Thus, satisfaction based on instances of the compliance of the proceedings as a mere formality cannot be a correct approach to interpret the principle behind the service. The deeming fiction is created in law to fill up the gap where the procedural law falls short. By accepting that the substituted service is deemed to be a good service, then passing ex parte decree is a correct legal step taken by the Court as per the procedure. However, the moment the defendant acquires the knowledge of the proceedings an....