ORDER
Shiv Dayal, J.
1. Dhal Singh instituted a suit against Anand Ran Kakde for the recovery of Rs. 3410/-an the Court of the Civil Judge First Class Gwalior (Civil Suit No. 89 of 1956). On September 20, 1957 an ex parte decree was passed in favour of the plaintiff. On October 8, 1958 the defendant made an application under Order 9 Rule 13 of the Code of Civil Procedure alleging that the decree was obtained by fraud and without due service of any summons on him and that he camp to know of the decree on October 3, 1958, when in execution of the decree the Nazir came to his house for attachment of his properties. The application for setting aside the decree was resisted by the plaintiff. The defendant filed an affidavit and the plaintiff cross-examined him.
In rebuttal the plaintiff produced Babukhan postman, who stated to have taken a registered envelope to the defendant and the defendant refused to accept it, whereupon he returned it with an endorsement to that effect. The learned trial Judge held that substituted service which was alleged to be effected was not due and proper, but he dismissed the application as barred by time. The defendant took an appeal to the District Judge, Gwalior, who allowed it and set aside the ex parte decree. This is plaintiff's revision from that order.
2. It is contended by Shri Dube, learned counsel for the plaintiff, that the application under Order 9, Rule 13, was barred by time inasmuch as it was made beyond 30 days of the date of the decree. The argument is that the defendant must be deemed to have acquired knowledge of the suit when he refused to accept the envelope from the postman and it cannot be said that he was not duly served within the meaning of Article 164 of the Limitation Act and, even if there was any irregularity, it was inconsequential so far as the starting point of limitation is concerned. Counsel relies on the new Rule 20-A of Order 5, C. P. C.
3. Two questions are involved in this case: whether the application for setting aside the ex parte decree was within time and whether any ground for setting aside the decree existed within the meaning of Order 9, Rule 13 C. P. C.
4. Two dates are named in Article 164 of the Limitation Act as the starting points of limitation;
(1) The date of the decree.
(2) Where the summons was not duly served, the date when the applicant had knowledge of the decree.
According to the plaintiff it is the first that applies while according to the defendant time must be taken to have started from the date of his knowledge of the decree, because no summons was duly served on him. The question arises as to when a summons is said to have been duly served for the purposes of Article 164. It is one of the first principles of Justice that a decree should not be passed behind the back of a defendant. It is based on the maxim aude alteram partem 'hear the other side'.
But when he does not appear in spite of service of summons on him it is taken for granted that he has nothing to say against the claim, and if the Court is satisfied of the truth of the plaintiffs case an ex parte decree is passed against him. But it may also be that the summons is in reality not served on him and what purports to be service is in truth no service. If the summons is not duly served on him it is a ground for setting aside an ex parte decree.
The expression 'duly served' is not defined anywhere, yet it is clear from Section 27 C. P. C. that due service means service effected in the manner prescribed by the Code. It is true that the object of service of summons is to inform the defendant of the institution of the suit against him, but it does not follow that any knowledge of the institution will be deemed to be due service of summons even though no service is effected as prescribed by the Code.
It seems to me that the word 'duly' has been employed in the Article with great care and it necessarily refers to the provisions contained in the Civil Procedure Code relating to service of a summons. The phrase 'where summons was not duly served' must receive a strict construction and if the service of the summons is not in literal conformity with the requirements of the Code of Civil Procedure, it is the second starting point of limitation that would apply.
5. The Civil Procedure Code prescribes four modes of serving a summons on the defendant: (1) by delivering or tendering a copy of the summons to the defendant personally, or to his duly empowered agent, under Order 5 Rules 10, 12, 16 and 18. This is the normal mode of service. (2) Where the summons cannot be served in the above manner by reason of the fact that the defendant refused to acknowledge service or cannot be found etc., it should be affixed to the outer door or other conspicuous part of the defendant's residence, under Rule 17(3). The Court may order substituted service under Rule 20, but this can be resorted to where the summons cannot be served in either of the above two modes, Or there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service. (4) A new Rule 20-A has been added by the Amendment Act of 1956. It enables the Court to order service by registered post when a summons issued by the ordinary process is returned unserved.
6. It must, however, be remembered that under Order 5 Rule 20 before ordering substituted service the Court should be satisfied that a condition on which it can be ordered exists, that is, the defendant is keeping out of the way to avoid service or that for any other reason service cannot be effected in the ordinary way.
7. The object with which Rule 20-A has been incorporated by the Parliament is obvious enough. It was a matter of common experience that summonses sent by a Court and received unserved caused considerable delay in the disposal of suits. Rule 20-A therefore, gives a discretion to the Court- to order service by registered post whenever the summons is returned unserved for whatever reasons.
The Court will, therefore, be justified in issuing summons to be served by registered post whenever a summons issued to be served by ordinary process is returned unserved. Even so, the new provision does not enable the Court to issue a summons by registered post in the first instance, nor does it so enable the Court before a summons issued to be served by the ordinary process is returned unserved.
The condition precedent for the application of this rule is 'where the summons is returned unserved'.
8. In showing that he was not duly served, the defendant can either establish that substituted service ought not to have been ordered or that the service was not duly carried out. In either case, the summons cannot be said to have been duly served. The Court will go into the question whether the order of substituted service was passed according to law and whether the conditions of the rule were fulfilled. This applies to Rule 20-A also. Although the words 'duly served' would appear to relate to the method of service yet the summons cannot be said to be duly served under Order 5 Rule 20-A, when there is nothing on the record to show that the pre--requisites for ordering such service existed.
9. The true legal position may be summed up as follows:
1. The expression 'duly served' in Article 164 of the Limitation Act must receive a strict interpretation and it means service of summons in compliance with the provisions laid down in the Code of Civil Procedure.
2. No order for substituted service can be made under Order 5 Rule 20 unless the Court is satisfied that the defendant is keeping out of the way for the purposes of avoiding service, or that for any other reason the summons cannot be served in the ordinary way.
3. No order for service by registered post can be ordered unless a summons is returned unserved. Once the Court receives a summons unserved the Court may without examining the reasons for the non-service, order service by registered post.
4. Where a summons is not served on the defendant personally but is deemed to be served under any of the provisions of Order 5 e.g. where a summons sent by registered post is returned with the endorsement 'refused'' or where a service is substituted under Rule 20, the defendant can succeed on showing either that the service was not in reality effected as reported, or that the condition pre-requisite for ordering that mode of service did not exist.
5. Where a summons is actually served on the defendant personally, e.g. where he in fact accepts summons sent to him by registered post, time will run from the date of the decree notwithstanding any irregularity in ordering that particular mode of service.
6. Where service is ordered and effected in accordance with the provisions of the Act, it does not matter, whether the defendant got actual knowledge of the suit or not. Substituted service is as good and effectual as personal service.
10. In order to apply these principles to the instant case, it is necessary to state what was going in the suit from the date of its institution to the passing of the ex parte decree. The defendant resided in Shivpuri. On the institution of the suit, the Court ordered on Feb. 13, 1956 the issue of a, summons to the defendant for his appearance on April 5, 1956. On the 5th April the Court fixed the 25th April, since the summons had not been returned. On the 25th April it ordered that, since the summons had not been returned, a fresh one be issued. On the 30th May it was again ordered that summons not having been returned, another be issued.
Then on the 27th August the Court ordered that since the summons had not been returned, and the plaintiff requested for service by registered post, a fresh summons be issued by registered post. Now apart from the fact that on this day Rule 20-A did not exist, it must be at once mentioned that uptil this date, on no occasion had any summons been received by the Court as unserved. On the I8th October the Court observed that in spite of its order of the 27th August the office did not issue a sum-mons and ordered compliance with his previous order. But on the 13th December the Court again observed the same omission on the part of the office and made a fresh order for issuing a fresh summons.
On January, 30, 1957, the Court again observed the same omission on the part of the office and again gave the same direction. On the 19th March the Court found that the summoas had not been returned and another was ordered to be issued. On the 29th April the Court ordered that in spite of the fact that postal expenses had been deposited by the plaintiff a fresh summons was not issued by the office. It appears from the order sheet of the 17th July that the summons which was despatched by registered post was returned unserved and the Court ordered issue of one summons in the ordinary was and another by registered post, fixing 18th September for hearing. It is noteworthy that uptil this date no summons issued to be served by the ordinary process was returned to the Court unserved.
11. On the 18th September the Court found that the summons which had been sent by registered post under order of the 17th July had been returned by the post office with the endorsement that the defendant refused to accept it. The order is silent as to what happened to the summons sent by ordinary process. The Court then proceeded ex parte against the defendant.
12. It is clear from the above details that not a single summons was returned to the Court unserved. In fact, there is no summons on the record even today. Every time the Court was observing that either a summons was not issued in spite of its orders or, if issued, it never came back to it. The plaintiff never stated to the Court that the defendant was keeping out of the way nor did the Court make any such observation. In fact, it could not be, because there was no material for it.
13. The new Rule 20-A of Order 5 came on the statute hook on January 1, 1957. The orders passed by the trial Judge for service by registered post whether under Rule 20 (before 1957) or under Rule 20-A, were made without any justification and without the pre-requisites of those rules being fulfilled. It must, therefore, be held that no summons was duly served on the defendant. That being so, the second starting point of limitation will apply to the defendant's application under Order 9, Rule 13.
14. On the question as to when the defendant got knowledge of the decree, there is his own statement unrebutted. It must therefore be held that the date stated by him is true. And since from that date the application was made within 30 days, I uphold the finding of the first appellate Court that the defendant's application was within time.
15. This brings me to the second question. It can be urged by the defendant that the expression 'not duty served' in Order 9, Rule 13 C. P. C. must receive the same strict interpretation as I have held for the purposes of Article 164 Limitation Act. It can be argued by the plaintiff that if a service is effected according to law, irrespective of any irregularity in ordering it, the decree cannot be set aside. It is unnecessary to decide this point because of what follows.
16. On the question whether the postal envelope containing the summons was actually offered to the defendant and he refused to accept it, the defendant examined himself and the plaintiff produced the postman, who stated that he did take the envelope to the defendant but the latter asked him to return it whereupon he wrote the endorsement 'refused''. As the appellate Court did not apply its mind to the evidence for ascertaining whether the postal envelope was in point of fact handed over by the postman to the defendant and its acceptance was refused by him, Shri Dube presses for a remand to the appellate Court. Certain unusual features of this case make it suspicious. In disregard to some orders of the Court a summons was not issued. Then below some other orders, despatch numbers showing the issue of summonses are written but there is not a single summons on the record.
Where are they? If they were sent to Shivpuri for service, why were they not returned served or unserved before or after the dates of hearing? Why did not the trial Judge write to the Shivpuri Court about it? Was the mischief being played in the office of the Shivpuri Court? Was it that the summonses were not really despatched from the Gwalior Court and the office as a face-saving device made entries as if they were despatched? It is suggested by the plaintiff that at some end there was some unholy alliance with the defendant. But for a careless handling of the case on the part of the trial Judge such an occasion would not have arisen.
17. During the course of the hearing Shri Patan-kar suggested and offered to the other side that in case I decide the question of limitation in favour of the defendant, no decision should be given on the second question but the order of the appellate Court should be maintained by imposing terms, He offers Rupees one hundred as costs which Shri Dube accepts.
18. Since I have held that the defendant's application under Order 9 Rule 13 C. P. C. was within, time, by consent of the counsel for both sides the revision is partly allowed and it is directed that if the defendant deposits in the Court of first instance Rupees One hundred for payment to the plaintiff as costs, on or before July 30, 1960, the ox parte decree shall stand set aside; otherwise the application for setting aside the ex parte decree shall stand dismissed.
19. Parties shall bear their own costs incurred in all Courts En the proceedings under Order 9 Rule 13 C. P. C. (20) Both parties shall appear before the trialJudge on July 30, 1960.