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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO 71 OF 2018

[Arising out of SLP(C) No.5847 of 2017]

M/S NEERJA REALTORS PVT LTD ..Appellant

VERSUS

JANGLU (DEAD) THR. LR. ..Respondent

J U D G M E N T

Dr D Y CHANDRACHUD, J

1 Delay condoned.

2 The present appeal is from the judgment of a Single Judge at the

Nagpur Bench of the High Court of Judicature at Bombay. While allowing

a first appeal, the High Court set aside the judgment and order of the Civil

Judge (Senior Division) at Nagpur which had decreed a suit for specific

performance instituted by the appellant, ex-parte.

3 The subject matter of the suit for specific performance is an agreement

dated 15 July 2006 entered into by the appellant with the original defendant in

REPORTABLE

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respect of agricultural land admeasuring 1.66 Hectares (4.07 acres) situated in

Mauza-Sondapar, Tahsil Hingna, District Nagpur. The total consideration

payable under the agreement was Rs 13,04,391 out of which an amount of Rs

3,26,000 was recorded to have been paid. The balance of Rs 9,78,391 was to

be paid at the time of the execution of the sale deed.

4 On 30 June 2007, Shobha, who is the daughter of the original respondent

instituted a suit (Old Regular Suit No 726/2007 which was renumbered as

Regular Suit No 269/2008) against her father and the appellant for partition,

possession and for declaratory and injunctive reliefs in relation to the land. In

that suit the plaintiff claimed that her father was in dire financial need and had

obtained a loan from the appellant and that as security, the appellant got certain

documents executed. According to the plaintiff, the agreement was vitiated by

fraud and misrepresentation and the land being ancestral property, the

agreement was not binding on her. The original defendant entered appearance

and disclosed his residential address in a proceeding under Order VIII Rule 11

of the Code of Civil Procedure, 1908 (‘the CPC’). The appellant also filed her

written statement. The suit was dismissed on 8 July 2010 on the ground that

the land belonged to the original defendant and that the plaintiff had no right,

title and interest.

5 On 5 February 2011, the appellant filed a suit for specific performance

(Suit 184 of 2011) of the agreement to sell dated 15 July 2006. On 9 February

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2011, the Trial Court issued notice to the original defendant for settlement of

issues. It appears that summons were issued on two occasions to the original

defendant but were returned unserved. On 11 April 2011, the bailiff submitted

a report stating that when he went to serve the defendant, he was informed by

persons residing in the village that he had left the premises two years earlier

and was residing elsewhere. The summons were returned since the defendant

was not residing at the address given therein.

6 The appellant filed an application for substituted service under Order V

Rule 20 (1-A) of the CPC on 2 September 2011. The Trial Court allowed the

application on the same day in terms of the following order:

“Issue S/S to deft. u/o 5 R 29 (1-A) of CPC at the expense of the

Plaintiff.”

7 The appellant claims to have effected substituted service by publication

in the Marathi daily Lokmat. On 29 November 2011, the Trial Court passed the

following order:

“Deft. served on public notice in daily news paper Lokmat on

04.10.2011 but he remained absent. Suit proceeded ex parte

against the defendant. Suit proceeded ex parte against the Deft.”

8 The suit was decreed on 13 June 2014 and the appellant was directed to

deposit the balance consideration of Rs 9,78,391 within one month.

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9 The appellant claims to have deposited the amount on 17 July 2014.

10 On 12 September 2014, the original defendant filed a first appeal under

Section 96 of the CPC before the High Court. He died on 21 August 2015. The

appellant submitted an application for bringing his legal representatives on

record. The application was eventually allowed on 23 September 2016.

11 The High Court by its judgment dated 7 July 2015 held that neither the

report of the bailiff nor the order of the Trial Court indicate that a copy of the

summons was affixed in a conspicuous place on the court house and at the

house where the defendant was known to have last resided. The High Court

held that there was a breach of the provisions of Order V Rule 20 (1) of the

CPC. The High Court observed that the order of the Trial Court permitting

substituted service was cryptic and that the Court had not recorded its

satisfaction that the defendant was keeping out of the way to avoid service or

that the summons could not be served in the ordinary manner for any other

reason. Moreover, the serving officer had not followed the procedure stipulated

in Order V Rule 17 where the defendant was not found to reside at the place

where he was last residing. The Court noted that besides the service to be

effected through the bailiff, the summons were not sent to the defendant at the

address furnished by the plaintiff by registered post, with acknowledgment due.

The High Court also found that the Trial Judge had ignored the provisions of

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Chapter III of the Civil Manual issued by the High Court on the Appellate side

for guidance of Civil Courts and officers subordinate to it.

12 On behalf of the appellant, it has been submitted that the High Court has

misconstrued the provisions of Order V Rule 20. According to the appellant,

Order V Rule 20 allows an option to either affix the notice at the court premises

coupled with affixation at the home of the defendant or by any other mode

including publication in a newspaper. In the present case, service of summons

was effected on the original defendant by publication in the newspaper on 4

October 2011. Hence, it was urged that there was no further requirement to

affix the summons at the court premises and at the house of the original

defendant. Moreover, it was urged that the order of the Trial Court was not

cryptic and the report of the bailiff clearly indicated that the original defendant

was not residing at the address submitted by the appellant because of which

the summons were returned.

13 On the other hand, learned counsel for the respondent urged that the

findings of the High Court in the first appeal are borne out from the record and

are in accordance with law. Hence no interference is warranted in the present

proceedings.

14 The record before the Court would indicate that the Trial Court by its order

dated 9 February 2011 directed the issuance of summons to the original

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defendant, returnable on 15 March 2011. In pursuance of the order, summons

were issued on 4 March 2011. The report of the bailiff dated 11 April 2011

indicates that the summons were returned unserved and the bailiff was

informed that the original defendant had left the premises nearly two years

earlier and resided elsewhere.

15 Order V Rules 17 provides as follows:

“17. Procedure when defendant refuses to accept service, or cannot be

found.- Where the defendant or his agent or such other person as

aforesaid refuses to sign the acknowledgment, or where the serving

officer, after using all due and reasonable diligence, cannot find the

defendant, who is absent from his residence at the time when service is

sought to be effected on him at his residence and there is no likelihood

of his being found at the residence within a reasonable time and there is

no agent empowered to accept service of the summons on his behalf, nor

any other person on whom service can be made, the serving officer shall

affix a copy of the summons on the outer door or some other conspicuous

part of the house in which the defendant ordinarily resides or carries on

business or personally works for gain, and shall then return the original

to the court from which it was issued, with a report endorsed thereon or

annexed thereto stating that he has so affixed the copy, the

circumstances under which he did so, and the name and address of the

person (if any) by whom the house was identified and ‘whose presence

the copy was affixed.”

Evidently as the report of the bailiff indicates, he was unable to find the

defendant at the address which was mentioned in the summons. The report of

the bailiff does not indicate that the summons were affixed on a conspicuous

part of the house, at the address mentioned in the summons. There was a

breach of the provisions of Order V Rule 17. When the application for

substituted service was filed before the Trial Court under Order V Rule 20, a

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cryptic order was passed on 2 September 2011. Order V Rule 20 requires the

Court to be satisfied either 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. Substituted

service is an exception to the normal mode of service. The Court must apply its

mind to the requirements of Order V Rule 20 and its order must indicate due

consideration of the provisions contained in it. Evidently the Trial Court failed to

apply its mind to the requirements of Order V Rule 20 and passed a mechanical

order. Besides this, as observed by the learned Single Judge of the High Court,

the Trial Judge ignored the provisions contained in Chapter III of the Civil

Manual issued by the High Court on its appellate side for the guidance of civil

courts and officers subordinate to it. Paragraphs 33 to 36 of Chapter III are

extracted below:

“33. In addition to the service to be effected through a bailiff, a

summons may also be sent to the defendant, to the address given

by the plaintiff, by registered post, prepaid for acknowledgement,

provided there is a regular daily postal service at such place.

34. Rules as to service of summons are contained in rules 9 to 30

of Order V. Care should be taken to see that bailiffs follow those

rules as well as the instructions given in the Bailiffs’ Manual.

35. It is the duty of the serving officer to follow the procedure and

take all the steps laid down in rule 17 of Order V. He has no

discretion for not taking the necessary steps, when the conditions

laid down in the said rule are fulfilled.

36. It is for the Court to determine whether the service is good or

bad. In determining whether the service is good or not, the attention

of Courts is drawn to the necessity of strictly following the provisions

of the Civil Procedure Code as to the service of processes.

Ordinarily, service should not be considered sufficient unless all the

requirements of the law in that behalf are fulfilled. The object of the

service is to inform a party of the proceedings in due time. When

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from the return of a serving officer it appears that there is no

likelihood that a process will come to the knowledge of the party in

due time, or a probability exists that it will not so come to his

knowledge, the service should not be considered to be proper. The

law contemplates that the primary method of service should be

tendering or delivering a copy of the process to the party personally,

in case in which it may be practicable to do so. It is the duty of the

serving officer to make all proper efforts to find the party, with a view

to effect personal service. If it be not possible after reasonable

endeavour to find the party, then only the service may be made on

an adult male member of the family residing with him.”

The submission that under Order V Rule 20, it was not necessary to affix a copy

of the summons at the court house and at the house where the defendant is

known to have last resided, once the court had directed service by publication

in the newspaper really begs the question. There was a clear breach of the

procedure prescribed in Order V Rule 17 even antecedent thereto. Besides, the

order of the Court does not indicate due application of mind to the requirement

of the satisfaction prescribed in the provision. The High Court was, in these

circumstances, justified in coming to the conclusion that the ex-parte judgment

and order in the suit for specific performance was liable to be set aside.

16 In Bhanu Kumar Jain v Archana Kumar

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, a Bench of three Judges of

this Court has held that :

“An appeal against an ex parte decree in terms of Section 96(2) of

the Code could be filed on the following grounds:

(i) the materials on record brought on record in the ex parte

proceedings in the suit by the plaintiff would not entail a

decree in his favour; and

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(2005) 1 SCC 787

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(ii) the suit could not have been posted for ex parte hearing.”

A defendant against whom an ex-parte decree is passed has two options: The

first is to file an appeal. The second is to file an application under Order IX Rule

13. The defendant can take recourse to both the proceedings simultaneously.

The right of appeal is not taken away by filing an application under Order IX

Rule 13. But if the appeal is dismissed as a result of which the ex-parte decree

merges with the order of the Appellate Court, a petition under Order IX Rule 13

would not be maintainable. When an application under Order IX Rule 13 is

dismissed, the remedy of the defendant is under Order XLIII Rule 1. However,

once such an appeal is dismissed, the same contention cannot be raised in a

first appeal under Section 96. The three Judge bench decision in Bhanu

Kumar Jain has been followed by another bench of three Judges in Rabindra

Singh v Financial Commissioner, Cooperation, Punjab

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and by a two Judge

bench in Mahesh Yadav v Rajeshwar Singh

3

. In the present case, the original

defendant chose a remedy of first appeal under Section 96 and was able to

establish before the High Court, adequate grounds for setting aside the

judgment and decree.

2

(2008) 7 SCC 663

3

(2009) 2 SCC 205

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17 For the above reasons, we find no reason to interfere with the judgment

and order of the High Court. The appeal accordingly stands dismissed. There

shall be no order as to costs.

...........................................CJI

[DIPAK MISRA]

...........................................J

[A M KHANWILKAR]

...........................................J

[Dr D Y CHANDRACHUD]

New Delhi;

January 29, 2018