Case Note & Summary
The appellant/defendant, Janglu son of late Damdu Durge, appealed against the judgment and decree dated 13th June 2014 passed by the trial court in Special Civil Suit No. 184 of 2011, which partly decreed the suit for specific performance of contract filed by the respondent/plaintiff, M/s Neeraj Relators Private Limited. The plaintiff had filed the suit alleging that the defendant agreed to sell suit property for Rs. 13,04,391/-, received part consideration of Rs. 3,26,000/-, but failed to execute the sale deed. The trial court proceeded exparte against the defendant on 29.11.2011 after paper publication in the newspaper 'Lokmat' dated 4.10.2011. The defendant challenged the decree primarily on the ground that he was not duly served with suit summons. The High Court examined the roznama (daily proceedings) which showed that summons were sent twice and returned unserved, and on 2.9.2011 the plaintiff filed an application under Order V Rule 20(1A) CPC for service by paper publication. However, the court noted that the trial court did not record its satisfaction that summons could not be served in the ordinary way, nor did it pass an order for substituted service as required under Order V Rule 20 CPC. The court held that the exparte decree was without jurisdiction and set it aside, restoring the suit to its original file for fresh decision after giving the defendant an opportunity to file a written statement. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Substituted Service - Order V Rule 20 CPC - Requirement of Prior Attempts and Court Satisfaction - The trial court proceeded exparte against the defendant based on paper publication without first recording satisfaction that summons could not be served in ordinary way and without passing an order for substituted service. Held that such exparte decree is without jurisdiction and liable to be set aside (Paras 7-10). B) Specific Performance - Exparte Decree - Setting Aside - Non-Service of Summons - The defendant was not duly served with suit summons; the trial court's order dated 29.11.2011 merely noted service by public notice but did not comply with Order V Rule 20 CPC. Held that the impugned judgment and decree are set aside and the suit is restored to file for fresh decision after giving opportunity to defendant to file written statement (Paras 10-11).
Issue of Consideration
Whether the trial court could proceed exparte against the defendant based on paper publication without first recording satisfaction that ordinary service was not possible and without passing an order for substituted service under Order V Rule 20 CPC
Final Decision
Appeal allowed. Impugned judgment and decree dated 13th June 2014 passed by the trial court in Special Civil Suit No. 184 of 2011 are set aside. The suit is restored to its original file for fresh decision after giving opportunity to the defendant to file written statement. No order as to costs.
Law Points
- Substituted service under Order V Rule 20 CPC requires prior attempts at ordinary service
- court satisfaction of inability to serve
- and an order for substituted service before paper publication
- Exparte decree without proper service is a nullity
- Appeal allowed
- matter remanded for fresh trial
