Harbans Singh vs Jaswant Singh

Kilam, J.—A suit for the recovery of a sum of Rs. 500/- was brought by the Plaintiff, Col. Jaswant Singh, against S. Harbans Singh

Defendant, on account of the arrears of rent of a house which Harbans Singh Defendant had taken on lease from the Plaintiff. The suit was brought

on 8th Assuj 2010 (1953 A.D.). Summonses for appearance to defend the suit were issued to Harbans Singh Defendant as many as four times,

but each time the summonses were returned as unserved. Ultimately the trial Judge ordered that substituted service be effected on the Defendant

by means of publication of a notice in some newspaper. The notice appeared in the daily Khidmat of 11th April 1954 (29th Chet 2010). Ex parte

proceedings were taken against the Defendant thereafter, and a decree for a sum of Rs. 500/- was passed against him on 30-2-2011 (1954 A.D.)

The learned Counsel appearing on behalf of the Defendant has drawn my attention to a number of authorities in which the view has been

'enunciated that though substituted service may be considered as personal service on a Defendant, this would not preclude a Defendant from

showing that in fact there had been no service on him at all. (Vide Kedar Mull Agarwalla and Another Vs. Wazifunnessa and Another, . A similar

view has been taken in a Single Bench judgment of the Oudh Chief Court reported as Gajadhar v. Uma Datt AIR 1938 Oudh 11(B). In this ruling

it has been laid down that though substituted service shall be as effectual as if it had been made on a Defendant personally, yet it does not follow

that substituted service is necessarily due service, the adequacy of which cannot be contested by the' party concerned.

The Allahabad High Court in a Full Bench judgment has also enunciated the same principle see Ram Bharose Vs. Ganga Singh . A contrary view

has been taken in Shah Shantilal and Co. Vs. T.E. Shiborwalla, in which it has been held that

for the purposes of Article 164, Limitation Act a person on whom substituted service was effected must be held to have been duly served and that

the time runs from the date of the decree, even though the Defendant had no knowledge of the passing of the decree.

Order 5, Rule 20 of the Code of Civil Procedure, has provided that service substituted by order of the Court shall be as effectual as if it had been

made on a Defendant personally. The view of the majority of the High Courts is that Rule 20 means only that service shall be treated as effectual

for the purpose of enabling the Court to proceed with the suit. But this rule does not preclude the Defendant against whom an ex parte decree has

been passed from showing that the circumstances justifying the order for substituted service did not, as a matter of fact, exist and that the service

was not properly effected.

The principles may be drawn that while substituted service is due service, but it should be open to a Defendant to show that substituted service

was not calculated to effect the purpose of informing him of the institution of the suit; & in order to see whether there was due service or not the

Court must consider all the circumstances of the case, for example the place where the Defendant was when the summons was issued to him, and

where and how the summons was sought to be served.

For instance, the possibility of a Plaintiff getting summons issued for a Defendant at a place-where he never resided and then secure an order for

substituted service can never be excluded. In such cases, the Defendant must have the right & opportunity to show that the summons was not duly

served on him. The case would be different if there are circumstances justifying the inference that the Defendant had been deliberately keeping, out

of the way in order to avoid service of summonses. In such cases substituted service will be due service irrespective of the question of the actual

knowledge of the suit on the part of the Defendant.

Now applying this principle to the facts of the present case, we find that summonses were is sued to the Defendant four times at his residence in

Haftchinar where he is even now residing with his house people. It is unthinkable that his house people would not have come to know that a suit

was lodged against the Defendant, and that they should not have informed him of the suit. On the back of the summonses it is sometimes noted that

the Defendant is an employee in the Military Department and that his house people did not know where he was posted. On the back of other

summonses it is noted that the Defendant had gone to Jammu.

On other summonses it is noted that Harbans Singh had gone out of Srinagar, and so on. In, his own statement before the Court Harbans Singh-

defendant says that he had gone to Jammu in the month of Jeth 2011 (May 1954). The suit was lodged on 8th Assuj 2010 (1953 A.D.). On his

own showing Harbans Singh was at Srinagar for about eight months after the institution of the suit against him. During this time summonses were

issued to him on 13th Magh 2010, 12th Phagon 2010, 29th Phagon 2010 and 8th Assuj 2010. Admittedly on all these dates the Defendant was at

Srinagar. There was no mistake about the address either. All this would show that the Defendant deliberately avoided service of summonses issued

to him. Substituted service, under these circumstances, was due and effectual.

I, therefore, find no force in this revision application which is rejected with costs.