Second Appeal No.383 of 2012

22nd December, 2014.

Petitioner Counsel: Shri P.A. MARKANDEYWAR
Respondent Counsel: Smt B. MESHRAM

Cases Cited:
Bhanu Kumar Jain Vs. Archana Kumar & Anr., 2005(5) ALL MR 257 (S.C.)=AIR 2005 SC 626 [Para 4,9]
Harbhajan Singh & Anr. Vs. L. Rs. of Gardhara Singh, AIR 2010 Rajasthan 170 [Para 4,8]
Dwarika Prasad Vs. Smt. Shakuntala Dubey & Ors., AIR 2010 Chhattisgarh 13 [Para 4,8]
Natvarlal D. Sarotia Vs. Bhagwati Shiyaram Patel, 2013(4) ALL MR 168 [Para 4,8]
Sadaram Marar Vs. Dular Marar, AIR 1917 Nagpur 26 [Para 9]

JUDGMENT

JUDGMENT :- Admit. The following substantial questions of law arise for consideration in this appeal filed under Section 100 of the Code of Civil Procedure (for short the Code):

1] Whether the order passed by the first appellate Court granting permission to serve the respondent by substituted service under provisions of Order 5 Rule 20 of the Code is in accordance with law?

2] Whether appeal under Section 100 of the Code is tenable at the instance of the party who has also availed the course as prescribed under provisions of Order 41 Rule 21 of the Code?

Heard learned counsel for the parties on aforesaid substantial questions.

2. The appellant is the original plaintiff who had filed Regular Civil Suit No. 1622 of 2003 for declaration and perpetual injunction. According to original plaintiff he was the owner of the suit property and the defendant was obstructing his possession. The respondent-original defendant contested said suit and by judgment dated 08.10.2007 the trial Court decreed the suit holding that the defendant had no right to either encroach upon the suit property or obstruct the plaintiff's possession.

3. The respondent being aggrieved by the aforesaid decree had filed appeal under Section 96 of the Code. The first appellate Court thereafter issued notice of the appeal to the present appellant. As said notice was not duly served upon the present appellant, the respondent sought permission to serve the appellant by way of substituted service. The first appellate Court granted such permission and notice of the appeal was thereafter published in newspaper "Tarun-Bharat". As the appellant did not appear even thereafter, the first appellate Court after hearing the original defendant allowed the appeal and dismissed the suit.

Being aggrieved thereby the original plaintiff has preferred the present second appeal.

4. Shri P. A. Markandewar, the learned counsel appearing for the appellant submitted that the appellant did not have a fair opportunity to contest the appeal before the first appellate Court. He submitted that without following the prescribed procedure, the first appellate Court had granted permission to the appellant therein to serve the respondent under provisions of Order 5 Rule 20 of the Code by having the notice published in a newspaper. He submitted that such permission could not have been granted unless the Court was satisfied that there was reason to believe that the respondent therein was avoiding service. He further submitted that though the appellant had moved an application under the provisions of Order 41 Rule 21 of the Code seeking rehearing of the appeal and though such application was pending, the second appeal challenging the judgment passed by the first appellate Court was also tenable. In support of aforesaid submissions the learned counsel for the appellant relied on the following judgments:

1] Bhanu Kumar Jain Vs. Archana Kumar and another AIR 2005 Supreme Court 626 : [2005(5) ALL MR 257 (S.C.)];

2] Harbhajan Singh & Anr Vs. L. Rs. Of Gardhara Singh AIR 2010 Rajasthan 170;

3] Dwarika Prasad Vs. Smt. Shakuntala Dubey & Ors. AIR 2010 Chhattisgarh 13;

4] Natvarlal D. Sarotia Vs. Bhagwati Shiyaram Patel 2013(4) ALL MR 168.

5. Smt. B. Meshram, learned counsel for the respondent opposed aforesaid submissions by urging that the first appellate Court had granted permission to serve the appellant by substituted service after being satisfied that said party could not be served by the regular mode. As the appellant was avoiding service, permission to serve him by substituted service was granted by the first appellate Court. It was further submitted that as the present appellant had already moved an application under provisions of Order 41 Rule 21 of the Code for rehearing of the appeal and the same was pending, it was not open for the appellant to again invoke jurisdiction of this Court by filing appeal under Section 100 of the Code. The learned counsel therefore sought dismissal of the second appeal.

6. I have carefully considered aforesaid submissions. I have also gone through the record and proceedings of the case. While considering the first substantial question of law as framed, it would be necessary to refer to the provisions of Order 5 Rule 20(1) of the Code. The same read as under:

"Order 5 Rule 20(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 summons 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."

It is, therefore, clear from the aforesaid proceedings that on the Court being satisfied that the respondent before it was avoiding service or could not be served in the usual mode, then after recording such satisfaction permission could be granted to serve said party through substituted service.

7. It is thus necessary to consider whether the first appellate Court has recorded its satisfaction before granting permission to serve the respondent therein by substituted service. After the appeal was filed, the first appellate Court issued notice to the respondent therein by order dated 20.12.2007. The initial notice was unserved on the respondent and the appeal was thereafter adjourned from time to time for taking various steps. Said steps were not taken and ultimately the proceedings came to be transferred to another Court and hence on 15.06.2010 fresh notice was directed to be issued to the respondent in said appeal. Said notice was made returnable on 28.06.2010. On 28.06.2010 the appellant before the first appellate Court moved an application for grant of permission to reissue notice on the changed address. Such permission was granted on 28.06.2010. The record thereafter indicates that aforesaid notice was returned back unserved and the appellant was required to take steps to serve the respondent therein. On 19.08.2010 the appellant therein moved an application below Ex. 9 and sought permission to serve the respondent by way of substituted service. The first appellate Court on 19.08.2010 passed the following order:

"Allowed."

On that basis notice was duly published in daily "Tarun-Bharat" and thereafter the appeal was taken up for hearing.

8. Perusal of the record of the first appellate Court indicates that the first attempt that was made to serve the respondent was by moving application at Ex. 8 on 28.06.2010. Said notice could not be served as according to the bailiff, the address given was incomplete. Immediately thereafter on 19.08.2010 the application for grant of permission to serve the respondent through substituted service was moved. The order passed thereon does not indicate any satisfaction recorded by the first appellate Court before granting such permission that the respondent therein was avoiding service. On the contrary, the address supplied by the appellant therein was incomplete. Considering the provisions of Order 5 Rule 20 of the Code, it is obvious that the direction to serve the other side by way of substituted service cannot be granted in a mechanical manner but the same can be done only after recording satisfaction as contemplated by sub-rule 1 of Rule 20 of Order 5 of the Code. These observations are fortified by the decisions relied upon by the learned counsel for the appellant in the cases of Harbhajan Singh & Anr., Dwarika Prasad and Natvarlal Sarotia (supra). It is, therefore, clear that the order granting permission under the provisions of Order 5 Rule 20 of the Code is not in accordance with law. Hence, the first substantial question of law as framed is answered by holding that said permission was granted by the first appellate Court without recording its satisfaction.

9. As regards second substantial question of law, the learned counsel for the appellant by relying upon the ratio of the judgment of the Supreme Court in Bhanu Kumar Jain, [2005(5) ALL MR 257 (S.C.)] (supra) sought to draw a similar analogy on the basis of observations made in para 26 of said judgment. He submitted that even if recourse to provisions of Order 41 Rule 21 of the Code had been taken, the same would not preclude the appellant from filing the second appeal. There appears to be the substance in said submission. While the respondent in an appeal that has been heard in his absence can seek rehearing under the provisions of Order 41 Rule 21 of the Code, there is no bar to challenge the said decree under the provisions of Section 100 of the Code. Precedent for said view can be found in Sadaram Marar Vs. Dular Marar AIR 1917 Nagpur 26, wherein it was held that the remedy under provisions of Order 41 Rule 21 can be invoked simultaneously to filing an appeal under Section 100 of the Code.

10. Though it is submitted by the learned counsel for the respondent that such remedy cannot be availed before two different Courts, considering aforesaid decision said submission cannot be accepted. If the appeal under Section 100 is allowed by setting aside the judgment passed by the first appellate Court, then the application moved under the provisions of Order 41 Rule 21 of the Code would no longer survive. Hence, the second substantial question of law is answered by holding that appeal under Section 100 of the Code is tenable even if the appellant has moved an application under provisions of Order 41 Rule 21 of the Code and the same is pending.

11. As a result of aforesaid discussion as it has been found that permission granted to serve present appellant under the provisions of Order 5 Rule 20 of the Code is without recording any satisfaction, the subsequent exercise of deciding the appeal in absence of the respondent therein by the first appellate Court cannot be sustained. Said judgment stands vitiated. In view of aforesaid the following order is passed:

The judgment dated 13.12.2010 passed in Regular Civil Appeal No. 629 of 2007 is set aside. The proceedings are remitted to the first appellate Court for deciding aforesaid appeal in accordance with law. The application moved by the appellant under provisions of Order 41 Rule 21 of the Code does not survive.

As the appeal is of the year 2007 the first appellate Court shall endeavour to decide the same by the end of April 2015.

The record and proceedings be sent back forthwith to the first appellate Court. Parties to said appeal to appear before the first appellate Court on 12.01.2015. It is made clear that first appellate Court shall decide said appeal in accordance with law without being influenced by any observations made in this judgment. Second Appeal is partly allowed with no order as to costs.

Appeal partly allowed.