- Bookmark
- Share
- CaseIQ
Raj Kumar Singh v. Gourishankar Jhunjhunwala And Others
Factual and Procedural Background
The appellant, defendant no. 2, challenged a judgment passed by a learned Judge of this Court in Miscellaneous Appeal No. 282 of 1956 dated 2nd January 1959. The appeal arose from an order of the trial Judge refusing to set aside an ex parte decree passed against defendant no. 2 and his three sons (defendants 18 to 20) in a money suit. The suit was based on a promissory note executed on 21st December 1946 by defendant no. 2 as the karta of a Hindu undivided family in favor of the plaintiff.
The suit was decreed ex parte against defendants 2 and 18 to 20 on 13th July 1955, while it was dismissed against other defendants on contest. Subsequently, in September 1955, defendant no. 2 filed an application under Order 9, rule 13 of the Code of Civil Procedure (CPC) to set aside the ex parte decree, alleging non-service of summons and claiming to have come to know of the decree only on 31st August 1955. The trial court rejected this application and the subsequent miscellaneous appeal to this Court also resulted in dismissal.
Legal Issues Presented
- Whether the substituted service of summons ordered under Order 5, rule 20 of the CPC by the trial court on 17th July 1953 was legally justified given the prerequisites of that rule.
- Whether the satisfaction required under Order 5, rule 20 of the CPC must be that of the trial court alone, and whether such satisfaction was properly recorded or presumed.
Arguments of the Parties
Appellant's Arguments
- The substituted service of summons under Order 5, rule 20 of the CPC was not justified as the prerequisite condition laid down in that rule was not fulfilled.
- Rule 12 of Order 5 mandates personal service of summons wherever practicable, and substituted service should only be ordered if personal service is not possible.
- The satisfaction required to order substituted service must be that of the trial court, not the appellate court.
Respondent's Arguments
The opinion does not contain a detailed account of the respondent's legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court analyzed the requirement under Order 5, rule 20 of the CPC that substituted service of summons can only be ordered if the court is satisfied that the defendant is avoiding service or that service cannot be effected in the ordinary way. The Court acknowledged the appellant's contention that such satisfaction must be that of the trial court, not the appellate court. However, the Court found no material or order sheet entry indicating that the trial court was not satisfied before passing the substituted service order on 17th July 1953. The Court emphasized that neither the Code of Civil Procedure nor any provision requires the trial court to record reasons or satisfaction explicitly before ordering substituted service. Given the prior multiple attempts at personal service by the plaintiff and the absence of contradictory material, the Court presumed the trial court was satisfied as required. Consequently, the Court held that the substituted service order was valid and that the appellant's challenge lacked merit.
Holding and Implications
DISMISSED WITH COSTS
The Court dismissed the appeal, thereby upholding the validity of the substituted service of summons and the ex parte decree against defendant no. 2 and his sons. The decision directly affects the parties by affirming the trial court's procedural actions and denying relief to the appellant. No broader legal precedent or new principle was established by this ruling.
1. Defendant no. 2 is the appellant. This appeal is directed against a judgment passed by a learned Judge of this Court in Miscellaneous Appeal No. 282 of 1956 on the 2nd January, 1959 That appeal was brought to this Court against an order of the trial Judge refusing to set aside an ex parte decree passed against defendant no. 2 and his three sons, defendants 18 to 20, in a money suit, which the plaintiff had laid on the basis of a promissory note executed on the 21st December, 1946 by defendant no. 2 as karta of a Hindu undivided family in favour of the plaintiff.
2. The suit was decreed ex parte against defendants 2 and 18 to 20 and was dismissed against other defendants on contest. This was on the 13th July, 1955. In September, 1955, an application was filed by defendant no. 2 in that court under Order 9, rule 13 of the CPC to set aside the ex parte decree on the ground that summons had not been served upon him and that he came to know of the ex parte decree only on the 31st August, 1955 The trial court rejected both the pleas and dismissed his application. Against that a miscellaneous appeal was brought to this Court with the same result.
3. The only point canvassed before us by learned counsel appearing for defendant No. 2 appellant is that the substituted service of summons, as ordered under Order 5, rule 20 of the CPC by the trial court on the 17th July, 1953, was not justified in law inasmuch as the pre requisite condition laid down in that rule was not satisfied. He continued that rule 12 of Order 5 enjoins upon a personal service of summons where-ever it is practicable on the defendant. R. 20 of O. 5 says:
“(1) 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 commons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in gone 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.”
4. The learned Judge, who disposed of the miscellaneous appeal in this Court, held that there was a justification for step being taken under Order 5, rule 20 of the Code on the facts and circumstances of the case. But learned Counsel contended that it was not the satisfaction of the appellate court but the satisfaction of the trial court which was a prerequisite condition before any substituted service could be legally ordered for under R. 20. This contention is right, but all the same, it does not appear from the order sheet nor from any other material that the trial court in this case was not so satisfied before he passed the order on the 17th July, 1953 for substituted service. It is not necessary and that has also not been prescribed in any provision lot the Code of Civil Procedure that the court will have to record the reasons for such satisfaction or even the fact that it was so satisfied before he can make a valid order under rule 20 of Order 6 for substituted service.
5. If we refer to the orders that had been passed in connection with the service of summons in this case previous to the 17th July, 1953, an appears from the order sheet, it will be clear that several attempts had been made by the plaintiff to have personal service of summons on defendant no. 2 as on other defendants. When such attempts failed the order dated the 17th July, 1953 on the application of the plaintiff was passed by the trial court.
6. There is therefore, sufficient material to presume that the Court was satisfied as a matter of fact, as contemplated under R. 20, before it directed a substituted service effected by publication of the summons in the Bengal Gazette Mere absence in the order sheet to the effect that the our was satisfied or mere absence of any reference to the reasons for such satisfaction in the order sheet cannot be taken advantage of by the appellant to challenge a valid order as made under rule 20 Such record is no I called for under any provision of law. In absence of any other material to the contrary. We have to presume that the court had been satisfied before it passed the order on the 17th July, 1953 for substituted service. We do not, therefore, find any merit in this appeal and dismiss the appeal with costs.
AK/RKC/G.G.M
7. Appeal dismissed.
Alert