Jodhpur: The Rajasthan High Court has set aside an ex-parte judgment and decree in a specific performance suit, holding that a locked house or incomplete address is not enough to presume that a defendant is hiding; the court must make reasonable efforts to locate and personally serve the defendant before resorting to newspaper publication.
Justice Farjand Ali allowed an appeal and held that this was not a case where the defendants were aware of the proceedings and deliberately chose not to appear. Rather, they could not be served at the address provided, while the process server had also informed the Court that they were residing at another location.
The Court held that this distinction could not be ignored merely because summons were subsequently published in a newspaper. It observed that the circumstances did not justify resorting to substituted service under Order V Rule 20 CPC.
The Court held that substituted service under Order V Rule 20 CPC is an exceptional mode of service and cannot be resorted to merely because ordinary service has failed. The Court must first be satisfied that the defendant is deliberately avoiding service or that summons cannot reasonably be served through the ordinary mode.
Court further observed that the method of substituted service adopted, including newspaper publication, must be such as is reasonably capable of bringing the proceedings to the defendant’s notice.
The Court found that Kanta Devi’s whereabouts were not completely unknown, so there was no sufficient reason to resort to substituted service.
‘Absence From an Address Does Not Mean Evasion of Service’
The Court held that a locked house or the fact that a defendant has shifted to another place does not, by itself, establish deliberate avoidance of service.
The High Court noted that the trial court did not make further efforts for ordinary service before permitting substituted service through newspaper publication.
Publication Does Not Automatically Amount to Valid Service
The High Court further held that newspaper publication is not an end in itself. The Court must consider whether the newspaper selected has meaningful circulation in the locality where the defendant is known or believed to be residing and whether the publication was reasonably capable of bringing the proceedings to the defendant’s notice.
The Court found that in the matter, no convincing material to establish that the appellants had knowledge of the suit or of the date on which they were required to appear.
The defect, therefore, went to the root of the proceedings and deprived them of the opportunity to contest the suit.
Ex-Parte Decree Set Aside; Suit Restored
Allowing the appeal, the High Court quashed order and set aside ex-parte decree.
The specific performance suit has been restored to its original number and to the same stage.
The appellants have been directed to appear before the trial court and file their written statement within 60 days of their appearance.