9911796707
TMI Blog2002 (10) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... n be accepted as a sufficient notice. 3. This appeal filed by the defendants (judgment debtors) arises out of the following material facts. Suit No. 473 of 1985 filed by the landlord ended in passing of an ex-parte decree by the Trial Court on30.5.1986. The appellants preferred an application on 6.10.1986 under Order 9 Rule 13 for setting aside the ex-parte decree which was rejected by the Trial Court. Their appeal before the appellate court and revision petition before the High Court ended without any success. It appears, initially the plaintiff (respondent herein) could not deposit the requisite process fee for which the summons could not be issued to the appellants-defendants. On2.4.1986, the Trial Court ordered the summons to be issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended that the Trial Court has acted in violation of the procedure prescribed under Order 5 of the Code of Civil Procedure, in issuing summons to the defendants. He further contended that the substituted service can be resorted to only when the court is satisfied that the defendants is avoiding the service or the service cannot be effected in an ordinary way. The Trial Court having not passed any order about the satisfaction an envisaged under the Code, it was not open to the Trial Court to order for substituted service. This submission need not detain us any longer. ON the facts of the case the court's satisfaction is implicit in the order directing service by publication. 5. Order 9 Rule 13 of the Code of Civil Procedure insists t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly circulated in the area would have constituted a sufficient notice to the defendants. 7. Before the Trial Court the stand taken by the plaintiff was that the defendants had knowledge about the suit filed by the plaintiff and they had sufficient time to appear and answer the plaintiff's claim but they did not appear and the application had been filed with intention to cause the delay. Be that as it may, we are of the view that the publication of the substituted service in the local daily Aacharan instead of Dainik Bhaskar is a mere irregularity in service of summons. 8. Second proviso to Order 9 Rule 13 casts an embargo on the court that a decree passed ex-parte shall not be set aside merely on the ground that there has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh. Hari Singh appeared and examined himself stating that he did not receive the registered letter. However, the defendant Basant Singh did not appear and no evidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgment due. His own conduct shows that the registered summons had been duly served on him. As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to disc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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