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Kodai Ram Vs. Ram Sunder Tewari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 571 of 1963
Judge
Reported inAIR1973All58
ActsCode of Civil Procedure (CPC) , 1908 - Order 5, Rule 20
AppellantKodai Ram
RespondentRam Sunder Tewari
Appellant AdvocateB.L. Shukla, Adv.
Respondent AdvocateBireshwar Nath, Adv.
DispositionAppeal allowed
Excerpt:
.....- appellant applied for substituted summons - respondent still did not appear in court - suit decreed ex-parte - after 3 years respondent filed suit stating fraud by appellant - appeal made - held, order for substituted service can be made by court when it has reason to believe that defendant is avoiding service - or summons can not be served in ordinary way - not only after unsuccessful attempts for personal service - ex-parte order was valid. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) ..........one attempt was made to serve the summons personally on the respondent which was returned by the process server with his report dated 12-11-1952 vide ex. a-3. there is no requirement of law that an order under order v, rule 20, civil procedure code could be passed by a court only after more than one unsuccessful attempt had been made to serve the summons personally on the defendant. all that this rule requires is that the court may order substituted service when it 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. on behalf of the appellant it is contended that it is also not factually correct that prior to this order of substituted.....
Judgment:

J.M. Lal, J.

1. This second appeal arises out of a suit filed by plaintiff-respondent for cancellation of a decree passed by the Revenue Court on the ground that the said decree was obtained by the defendant-appellant under fraud which prevented the plaintiff-respondent from coming to know of that decree. The suit was dismissed by the trial Court but decreed by the lower appellate court. Hence this second appeal.

2. The relevant facts were that the appellant filed a suit under Section 59 of the U. P. Tenancy Act in the Revenue Court against the appellant for a declaration that he had acquired hereditary tenancy rights in a plot under Section 180 (2) of the said Act Summons of that suit was issued to the respondent but the same could not be served on him personally. The appellant then applied that substituted service may be effected on him under Order V, Rule 20, Civil Procedure Code. The Revenue Court allowed that application and directed that service shall be effected by beat of drum in the locality in which the respondent resided and also by affixation of the summons at some conspicuous place in the Court. It was done accordingly. Even after that the respondent did not put in appearance on the date fixed and the suit was decreed ex parte in 1953. In the year 1956 the respondent filed the suit out of which this appeal has arisen alleging that he was prevented from having any information of that suit due to the fraud of the appellant and for that reason he could not contest that suit. He, therefore, wanted that the said decree may be cancelled.

3. The only point that was urged in this appeal by the learned counsel for the appellant was that the mere fact that the respondent did not know about the suit as the summons was not duly served on him would not be a sufficient ground to invalidate that decree on the ground of fraud unless it is also proved that the information of the suitwas suppressed from the respondent due to the fraud of the appellant. In support of this contention he places reliance on a decision of the Calcutta High Court in Abbasali Bhuiya v. Ram Kanai : AIR1935Cal95 in which it was held that in a suit instituted under Article 95 to set aside a decree obtained by fraud or for relief on the ground of fraud, the plaintiff must show that the summons was fraudulently suppressed and by fraud of the defendant he was kept ignorant of the decree and mere non-service of summons is not sufficient The lower appellate Court has not up-set the finding of the trial court that on 9-4-1953 the service of summons was effected by beat of drum in the locality and by affixation of the summons at some conspicuous place in the court compound in compliance with an order passed by the court under Order V, Rule 20, Civil Procedure Code what it has observed is that the appellant was not justified in moving an application for substituted service under Order V, Rule 20, Civil Procedure Code on which this order was passed by the trial court simply because before that only one attempt was made to serve the summons personally on the respondent which was returned by the process server with his report dated 12-11-1952 vide Ex. A-3. There is no requirement of law that an order under Order V, Rule 20, Civil Procedure Code could be passed by a court only after more than one unsuccessful attempt had been made to serve the summons personally on the defendant. All that this rule requires is that the court may order substituted service when it 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. On behalf of the appellant it is contended that it is also not factually correct that prior to this order of substituted service only one attempt was made to effect personal service on the defendant. He points out that prior to November, 1952 one more fruitless attempt was made in that direction and another fruitless attempt was made after November, 1952, and before the application for substituted service was made. There is no document on record in respect of those two other unsuccessful attempts. The appellant had of course stated in his statement on oath that the summons had been taken by the process server to the house of the respondent on two occasions in his presence and on each occasion he was told by the respondent's nephew that the respondent was out of station. Any way, as stated above, there was no such legal requirement that substituted service could not be ordered before more than one attempt had been made to effect personal service, and for that reason the order of the court concerned for substituted service does not become illegal much less can it be inferred from that order that it was on account of any fraud practicised by the appellant that this order came in existence.

4. The lower appellate court also concluded from the report of the process server dated 12-11-1952 that this report had been made by him in collusion with the appellant in order to make ground for him to apply for substituted service under Order V, Rule 20, Civil Procedure Code. This conclusion was also drawn without the support of any evidence on record. The report of the process server per se cannot reasonably lead to any such inference. If the appellant really wanted his suit to be decreed ex parte and to keep the respondent in ignorance about that suit and for that purpose he had colluded with the process server, he would not have obtained a report of the type of Ex. A-3. In this report it was stated by the process server that he heard that the respondent had gone out for his treatment in a hospital and so the summons was being returned for service by the process server of that beat in which the hospital was situate. Apparently a report of this nature made by a process server was damaging to the cause of the plaintiff as he had to file fresh process fee for getting another summons issued and then depend on the performance of the other process server or to apply to the court for substituted service with the risk of such prayer being allowed or disallowed by the court. Whenever there is a collusion between the plaintiff and the process server in the matter of getting service effected secretly on the defendant, an effective report is obtained from him which may persuade the court to hold that the service had been duly made on the defendant at least by affixation or even personally though he had refused to sign the acknowledgement. The inference drawn from report like Ex. A-3 that it was made by the process server in collusion with the appellant in order to make ground for him to apply for substituted service is wholly unwarranted and perverse. The learned Civil Judge has not referred to any other piece of evidence, direct or circumstantial from which it may be inferred that the appellant had practised any fraud for the purpose of suppressing the information of the suit on the respondent. As such he was not justified in interfering with the finding recorded by the trial Court and setting aside the decree passed by that court.

5. The appeal is allowed. The judgment and the decree of the lower appellate court are set aside and those of the trial court are restored. The plaintiff-respondent to pay the costs to the defendant appellant. The stay order dated 2-12-1963 is discharged.


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