Case Note & Summary
The case involves a second appeal filed by the original plaintiff, Ramesh Jagannath Ingole, against the judgment of the first appellate court which allowed the appeal of the defendant, Shakunbai Ganesh Ingole, and dismissed the plaintiff's suit. The plaintiff had filed Regular Civil Suit No. 1622 of 2003 seeking declaration and perpetual injunction regarding a suit property, claiming ownership and alleging obstruction by the defendant. The trial court decreed the suit in favor of the plaintiff on 08.10.2007. The defendant appealed under Section 96 of the Code of Civil Procedure, 1908 (CPC). The first appellate court issued notice to the plaintiff, but when service was not effected, the defendant sought permission for substituted service under Order 5 Rule 20 CPC. The court granted permission, and notice was published in the newspaper 'Tarun Bharat'. The plaintiff did not appear, and the first appellate court allowed the appeal, dismissing the suit. The plaintiff then filed the present second appeal under Section 100 CPC. The legal issues considered were whether the order granting substituted service was valid and whether the second appeal was tenable despite the plaintiff also filing an application under Order 41 Rule 21 CPC for rehearing. The appellant argued that the first appellate court did not follow the prescribed procedure for substituted service, as it did not record satisfaction that the plaintiff was avoiding service. The respondent contended that the second appeal was not maintainable because the appellant had already sought rehearing. The court analyzed the provisions of Order 5 Rule 20 and Order 41 Rule 21 CPC. It held that substituted service requires the court to be satisfied that the defendant is avoiding service, which was not done. The court also held that the second appeal is tenable as the remedies under Order 41 Rule 21 and Section 100 are not mutually exclusive. The court allowed the second appeal, set aside the first appellate court's judgment, and remanded the matter for fresh hearing after proper service.
Headnote
A) Civil Procedure - Substituted Service - Order 5 Rule 20 CPC - Validity - The first appellate court granted permission for substituted service without recording satisfaction that the respondent was avoiding service. Held that such permission is not in accordance with law as the court must be satisfied that there is reason to believe the defendant is avoiding service. (Paras 1-5) B) Civil Procedure - Second Appeal - Section 100 CPC - Tenability - The appellant filed both an application under Order 41 Rule 21 CPC for rehearing and a second appeal under Section 100 CPC. Held that the second appeal is tenable as the remedies are not mutually exclusive. (Paras 1-5)
Issue of Consideration
Whether the order granting substituted service under Order 5 Rule 20 CPC was in accordance with law, and whether a second appeal under Section 100 CPC is tenable when the appellant has also availed remedy under Order 41 Rule 21 CPC.
Final Decision
Second appeal allowed. Judgment of the first appellate court set aside. Matter remanded to the first appellate court for fresh hearing after proper service of notice on the appellant.
Law Points
- Substituted service under Order 5 Rule 20 CPC requires court satisfaction that defendant is avoiding service
- mere non-service insufficient
- Second appeal under Section 100 CPC tenable despite pending application under Order 41 Rule 21 CPC
