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Venkat
Reddy

1991 0 Supreme(Ori) 314

1992 1 OLR 277

IN THE HIGH COURT OF ORISSA

L. Rath, J.
PRAFULLA CHANDRA DEO - APPELLANT
Versus
SATYANARAYAN CHANDRA DEO AND ANOTHER - RESPONDENT
Misc. Case Appeal No. 202 of 1989
Decided On : 16-09-1991

Mere knowledge of the suit from appearing in a Misc. Case is

not sufficient to dispense with the requirement of service of
summons. Publication in a newspaper, as a mode of substituted
service, must be made in a newspaper circulating in the locality
where the defendant is last known to have actually and
voluntarily resided.

Subject: CIVIL PROCEDURE CODE - SUMMONS AND SERVICE

Act Referred :
CIVIL PROCEDURE CODE : O.5 R.20, O.9 R.13

CIVIL PROCEDURE CODE - ORDER 5, RULE 20 - ORDER 9, RULE 13 -

SUMMONS - SERVICE - APPEARANCE IN MISC. CASE - PUBLICATION IN
NEWSPAPER - LOCAL NEWSPAPER - EX PARTE DECREE - SETTING ASIDE.

Fact of the Case:

The appellant, defendant in a partition suit, did not appear despite

summons being issued and returned unserved. Substituted service was
ordered by publication in newspapers, including Amrita Bazar Patrika. The
appellant had appeared in a Misc. Case related to the suit and received a
copy of the plaint. The suit was decreed ex parte. The appellant's
application to set aside the ex parte decree was rejected.

Finding of the Court:

The court held that mere knowledge of the suit from appearing in a Misc.
Case is not sufficient to dispense with the requirement of service of
summons. Publication in Amrita Bazar Patrika, a newspaper not widely
circulated in the locality, did not satisfy the requirement of Order 5, Rule
20, CPC for publication in a local newspaper.

Issues: 1. Whether appearance in a Misc. Case related to a suit is sufficient

to dispense with the requirement of service of summons in the suit? 2.
Whether publication in Amrita Bazar Patrika, a newspaper not widely
circulated in the locality, satisfies the requirement of Order 5, Rule 20, CPC
for publication in a local newspaper?

Page No. 1 of 4
Ratio Decidendi: 1. Knowledge of the suit from appearing in a Misc. Case is
not sufficient to dispense with the requirement of service of summons. A
defendant is entitled to expect an effective service of summons from the
court, calling upon him to appear on a particular date. 2. Publication in a
newspaper, as a mode of substituted service, must be made in a
newspaper circulating in the locality where the defendant is last known to
have actually and voluntarily resided. Amrita Bazar Patrika, not being
widely circulated in the locality, did not satisfy this requirement.

Final Decision: The appeal was allowed, the impugned order setting aside
the ex parte decree was set aside, and the case was remitted to the trial
court for fresh disposal.

Advocates Appeared:
M.N. Das , K.M. Panigrahi , B.D. Pradhan and M.N. Das , for the Appellant; P.K. Misra ,
N.C. Pati , S.K. Swain , D.K. Nayak , B. Sahoo and A.K. Sahoo , for the Respondent

JUDGMENT :

L. Rath, J. - The short but interesting question that arises in this appeal is whether
where summons in a suit has not been served on a defendant but he has appeared
through counsel in a Misc. Case in the suit and has contested the same but yet does
not appear in the suit, it can be decreed ex parte against him. The respondent No. 1
filed a suit for partition in which, the appellant, his brother figured as defendant No.
5. Summons issued against the appellant returned unserved several times. Since
summons was also being returned unserved against other defendants, an order was
passed by the Subordinate Judge, on 7-1-1983 directing the respondent No. 1 to
take out substituted service against the defendant No. 7 by way of publication in
some English newspapers circulated daily at Lucknow. On 13-1-1983 the Court
noticed that the appellant and the defendant Nos. 1, 2, 3 and 4 had not appeared
and that summons against them had not been served and hence allowed time till
22-1-1983 to take steps. On 27-1-1983 the draft filed by the respondent No. 1
regarding the newspaper publication was approved directing to publish in the
newspapers circulated in Nepal, Dhenkanal and Lucknow. On 6-7-1983 the copy of
the publication published in Amrita Bazar Patrika was accepted as sufficient service
against the appellant and the other defendants and they were set ex parte. In the
meantime in Misc. Case No. 110 of 1978 filed under Order 39, Rule 1, Code of Civil
Procedure, the appellant had appeared on 5-10-1978 and on 3-11-1978 and had
received the copy of the Misc. Case petition. On 9-11-1978 the learned counsel for
the appellant asked for a copy of the plaint and it was served on him. Thereafter he
took time to file objections but ultimately having failed to file the same, the interim
order was made absolute on 12-2-1979. The suit was decreed ex parte. An
application under Order 9, Rule 13, CPC was filed to set aside the ex parte decree.
The application was rejected with the learned Subordinate Judge taking the view
that the appellant having appeared in the Misc. Case had notice of the suit and
hence had been rightly set ex parte and that further the Amrita Bazar Patrika is a
paper which is also circulated in the locality and hence is a local paper and as such
the acceptance of the service as sufficient on 6-7-1983 was proper. The present
appeal is directed against such order.

2. Mr. M.N. Das, the learned counsel appearing for the appellant, has urged that
unless end until the service of summons has been made the mere appearance in the
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Misc. Case would at best amount to a knowledge of the defendant of the suit having
not been instituted but such knowledge atone would not be sufficient to do away
with the necessity of summons to be served On such basis it is argued that since
admittedly a summons was not served, the order setting ex parte the appellant was
bad in law. As a second limb of submission it is submitted that so far as Order 5.
Rule 20, CPC is concerned, the publication is required to be made in one of the local
newspapers, but Amrita Bazar Patrika cannot be characterised as such a piper.

3. Narendra Kishore Das Vs. Banamali Sahu Dibakar Sahu Firm, dealt with a situation
similar to the present one. In that case since service was not taken as sufficient
against the defendant, the Subordinate Judge directed taking up further steps for
service. Such fresh service was taken out in a registered post card which was said to
have been rendered to the defendant but the same was purported to have been
refused by him. Because of such fact the suit was set down ex parte against the
defendant. The Court considering the issues raised pointed out that the summons,
besides giving adequate particulars of the suit and the date fixed for either disposal
or for settlement of issues, is purported to be one addressed by the Court or Under
the authority of the Court and the latter requirement is fulfilled by insertion of the
words of their equivalent that it was given under the hand and the seal of the Court
on a day mentioned there. Until this is done it cannot be a summons within the
meaning of law. In that case the Court held that the post card, though it contained
some particulars about the date fixed for the suit and the nature of the suit,
including by whom and against whom it is brought, bore nothing to say that it was
signed by the Judge or under his authority. Analysing the position, the Court came to
the conclusion in these words :

"It is well settled in principle that a party's knowledge of the institution of a suit is
not sufficient so long as he is not effectively served with summons of the suit. He
may from various circumstances or either his own enquiry come to know that a suit
has been filed against him, but he is entitled to expect service of summons from
Court. Till that is done, you cannot fix him with the liability of ex parte decree and
cannot refuse his application to set aside the said decree on the ground that there is
good reason to believe that he knew of the suit."

It is thus paramount that even if a defendant might have knowledge of the suit, yet
he is within his rights to expect an effective service of summons on him calling upon
him to appear in Court and unless such service is made, he may avoid the Court. On
a closer analysis, I do not think that the position is altered in any way only because
appearance is made in a Misc. Case in the suit. So far as that appearance is
concerned, it is obviously true that the defendant had knowledge of the suit. As a
matter of fact, the very injunction petition itself stated that the averments made in
the plaint would be treated as part of the injunction petition. So the knowledge of
the defendant as regards the suit is unquestionable, but that by itself does not
satisfy the requirement of a summons, It does not show that he had intimation from
the Court to appear on a particular date or that he knew about it. It may so happen
that the counsel representing him in the Misc. Case may retire thereafter. The
knowledge of the advocate regarding the suit, if at all, may not also be transmitted
to the defendant. At any rate, to impute a knowledge of the defendant not only
regarding filing of the suit but also as to the date of appearance in pursuance of the
summons will require a lot of inference to be made.

Page No. 3 of 4
4. The next question that remains is whether the provisions of Order 5, Rule 20, CPC
can be taken to have been complied with so far as the appellant is concerned.
Undoubtedly the requirement of the provision is that when service is ordered to be
done through an advertisement in a newspaper, it shall be a newspaper circulating
in the locality in which the defendant is last known to have actually and voluntarily
resided. The address of the appellant as given in the plaint was Rairakhol town
which at best can be called a semi-urban area. Amrita Bazar Patrika cannot be said
to be daily circulated so widely in the locality that a publication in the same would
bring in the presumption of knowledge of the appellant. It is ideal in such
circumstances that the publication should be made in some local newspaper
preferably in the language of the State so that an appropriate presumption could be
drawn.

5. In that view of the matter, the appeal succeeds and the impugned order is set
aside. The ex parte decree is set aside and the case is remitted to the trial Court for
fresh disposal. The L. C. R. be sent back forthwith. Since the suit is already old one,
the learned Subordinate Judge is directed to dispose of the suit within three months
from the date of receipt of the records under intimation to this Court. No costs.

Page No. 4 of 4