M.M. Kumar, J.
1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenges order dated 17th February, 2003 passed by the Additional Civil Judge (Senior Division), Kharar setting aside the ex parte judgment and decree dated 13th January, 1999 passed in favour of the plaintiff-petitioner. The Civil Judge issued notice of the application which was contested and then framed five issues. After conclusion of the evidence, she recorded the findings on various issues. The findings on issue No. 1 which is the most important issue read as under :-
'After hearing the rival arguments from both the sides. I find considerable merits in the arguments of learned counsel for applicant-Surjit Singh. The respondent wants to escape from his liability of proper service of the applicant by alleging that he had served him on the same address which he has given in the earlier litigation pending between Surjit Singh and Avtar Singh. In my opinion it was not the right approach of the respondent. When the summons sent to the applicant were received back with the report of incomplete address then it was the duty of the respondent to locate the correct address of the applicant. He cannot shield himself by saying that the applicant has mentioned that address in the litigation earlier pending between him and Avtar Singh. When the registered cover received back with a very specific report that the same cannot be served due to incomplete address then the burden was upon the respondent/plaintiff-Avtar Singh for furnishing correct/complete address of the applicant/defendant Surjit Singh in which he has failed. Moreover, if we consider the things in the ordinary circumstances even then it is found that the applicant was not properly served because Haibowal Kalan, Tehsil and District Ludhiana is a much bigger area and without mentioning the house number it is not easy to locate a person and the service of the applicant merely addressing him as resident of Haibowal Kalan, Tehsil and District Ludhiana is not possible and it is a vague address. The service of the applicant was not possible in any manner on the said address. In such like a big area how person can be located without mentioning his house number falling in the said area. So, in these circumstances, I hold that when the registered cover was received back unserved with the report of incomplete address then the duty was upon the plaintiff/respondent Amar Singh to furnish correct address but he had failed to furnish the same.
Another argument of learned counsel for the applicant which I appreciated is that the Court has not recorded anywhere her satisfaction that the service of the applicant is not possible in an ordinary manner and he is intentionally avoiding the same. As Ihave discussed above that when the registered cover received back unserved, theplaintiff/respondent moved an application for service of defendant No. 2 Surjit Singhthrough substituted service and the Court without recording any satisfaction to thiseffect ordered the service of the applicant through substituted service i.e. throughpublication. In such like circumstances, the Court is required to record his/hersatisfaction but that is missing in the present case...'
2. Shri Munishwar Puri, learned counsel for the plaintiff-petitioner has vehemently argued that the address given by Avtar Singh defendant-respodnent No. l in the litigation pending between him and Surjit Singh was furnished on the summons sent to Surjit Singh defendant-respondent No. 2. Therefore, Surjit Singh himself cannot plead that the address given on the Regd. A.D. cover as well as on summons was not complete or correct address. According to the learned counsel village Haibowal Kalan is not a big village which may warrant mentioning of a specific house number. He has further submitted that the Civil Judge instead of setting aside the exparte judgment and decree should have dismissed the application as infructuous because Avtar Singh defendant-respondent No. 1 has already executed the sale deed in respect of the land in favour of nominees of the plaintiff-petitioner and that mutation has also been sanctioned in their favour.
3. After hearing learned counsel for the plaintiff-petitioner, I am of the considered view that this petition is devoid of merit because while passing the judgment and decree, the mandatory provisions of Rule 20 of Order V of the Code have been completely ignored which read as under:-
'20. Substituted service.- (1) Where the Court is satisfied 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, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
[(1-A) Where the Court acting under Sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.]
(2) Effect of substituted service.- Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) Where service substituted, time for appearance to be fixed, - Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.'
4. The aforementioned provisions came up for consideration before the Supreme Court, in Yallawwa v. Shantawa, (1997)11 S.C.C. 159. The view taken by the Supreme Court is that the application filed under Rule 20 of Order V of the Code for substituted service should not be allowed in mechanical manner. Various steps laid down in Rules 12, 15 and 17 of Order V of the Code have to be exhausted and then satisfaction of the Court is required to be recorded that the defendant is keeping out of the way in order to avoid service or that for any other reason the summons cannot be served in the ordinary way. It has further been laid down that under Rule 19-A(2) proviso a declaration can be made by the Court on the non receipt of acknowledgement within 30 days that the summons must have been duly served as has also been held in Basant Singh v. Roman Catholic Mission, (2002)7 S.C.C. 531. Similar view has been taken by the Supreme Court in Ashok Nagar Welfare Association and another v. R.K, Sharma and others, A.I.R. 2002 S.C. 335, wherein it has been held that without recording satisfaction that the defendant could not be served in ordinary course the procedure under Rule 20 of Order V of the Code cannot be resorted to.
5. When the facts of the present case are examined in light of the views of the Supreme Court expressed in the aforementioned judgments, it becomes evident that before resorting to the procedure of substituted service, no satisfaction has been recorded by the trial Court stating that it was not possible to serve the defendant-respondents in the ordinary course. Such a satisfaction could not have been recorded because the endorsement on the Regd. A.D., cover categorically disclosed that the address was incomplete. The village Haibowal Kalan is not a small village as has been observed by the learned Civil Judge. It is hounded duty of the plaintiff-petitioner to ensure the furnishing of correct address of the defendant-respondent No. 2. It is no answer to say that the address given on the summons on the Regd. A.D. cover was furnished by the defendant himself in some connected litigation and, therefore, is binding on him. In Naresh Chandra Agarwal v. Bank of Baroda and others, (2001)3 S.C.C. 163 such an argument was raised but it did not prevail upon the Supreme Court and the same was ejected with the following observations:-
'.....It is not in dispute that at the relevant point of time when the notice of application was issued by the trial Court, the appellant was serving in Gonda District and was not in Pilibhit to which address the notice of substitution was sent. It is not even the case of the plaintiff that at the time of service of notice the appellant, in fact, was present at the address to which the notice was sent even on a visiting basis. Therefore, it is not served with the notice of substitution and the endorsement made therein as to the refusal of the service cannot be attributed to any act of the appellant. When a party is sought to be impleaded in a legal proceedings service of notice on such other party cannot be a mere formality but should, in fact, be a reality. In the instant case, neither the trial Court nor the High Court gave any definite finding as to the service of notice on the appellant. The mere fact that when the appellant made an application for setting aside the ex parte decree, he happened to give his permanent residential address which incidentally happened to be the address to which notice of substitution was sent by the Court, will not ipso facto lead to the conclusion that the notice of substitution was, in fact, served on the appellant. No inquiry or attempt was made by the trial Court to find out the truth of the fact whether the notice of substitution was, in fact, served on the appellant. Even the plaintiff in his affidavit filed in opposition to the appellant's application did not deny the fact that the appellant was working in Gonda District at the relevant time.
We are of the opinion that the interest of justice requires that the application of the appellant for setting aside the decree be allowed and the suit be disposed of after hearing the appellant on merits. We, however, make it clear that we have not expressed any opinion in regard to the other contentions of the appellant as to the discharge of original 8th defendant as a guarantor by the Bank or the effect of not deciding Issue Nos. 9 and 12 in the original suit by the trial Court.'
6. I am further of the view that the selection of the Punjabi Daily 'Chardi Kala' would become irrelevant because of the decision on the first point. Assuming for the sake of argument that such an issue arises, even then the newspaper 'Chardi Kala' can not be considered to be in circulation in Ludhiana and villages adjoining it. The newspaper 'Chardi Kala' more or less is circulated in district Patiala and its surrounding areas. Moreover, the Civil Judge has also found it as a fact. Therefore, the revision petition is devoid of merit and is thus liable to be dismissed.
7. The argument of the learned counsel that the Civil Judge should have dismissed the application of defendant-respondent No.2 filed under Order IX Rule 13 of the Code as infructuous would not require any detailed consideration for the reason that Surjit Singh has claimed that he is entitled to the execution of sale deed in his favour by defendant-respondent No. l Avtar Singh on the basis of an agreement to sell the suit land to him. Surjit Singh defendant-respondent No. 2 has already filed a suit against Avtar Singh. The suit filed by the plaintiff-petitioner which was decreed on 13th January, 1999 ex parte did spell out prejudice to the interest of defendant-respondent No. 2 on account of opportunity to defend having not been afforded to him. Moreover, the question in the instant petition is as to whether the ex parte proceedings initiated against defendant-respondent No. 2 Surjit Singh were sustainable in the eyes of law or not'. Therefore, there is no merit in this contention of learned counsel for the plaintiff-petitioner and the same is hereby rejected.
8. For the reasons recorded above, this petition fails and the same is dismissed.