M.S. Parikh, J.
1. Service of Rule waived by Mr. P.B. Majmudar, learned Advocate for the respondent Nos. 1 and 2.
2. Heard. Both these revisions seek to challenge the judgment and order dated 2-4-1977 rendered by the learned Judges of the Appellate Bench of the Small Causes Court at Ahmedabad in Appeal From Order No. 43 of 1997 and Appeal From Order No. 44 of 1997.
3. The petitioner herein was the original tenant of the suit premises against whom and against the sub-tenantsunlawful assignees, respondent Nos. 1 and 2 filed H.R.P. Suit No. 1975 of 1977 for obtaining possession of the suit premises. Before that the landlord filed H.R.P. Suit No. 4805 of 1974 on 17-10-1974 for obtaining injunction. This was followed by H.R.P. Suit No. 5203 of 1974 filed on 5-11-1974, which was ultimately withdrawn contending that on 6-5-1977 aforesaid substantial suit for possession, viz., H.R.P. Suit No. 1975 of 1977 was filed. In the said suit the present petitioner being the 1 st defendant was served by substituted service. However, the suit was contested by the other defendants being the subtenants/unlawful assignees. Ultimately, decree for possession was passed on 24-2-1982 and the same was challenged by the aforesaid other defendants in Civil Appeal No. 243 of 1982. The Appellant Bench of the Ahmedabad Small Causes Court dismissed the said appeal on 16-12-1991, with the result that the said other defendants carried the matter before this Court in C.R.A. No. 305 of 1992, which also came to be rejected on 6-2-1992.
4. After the aforesaid rounds of litigation between the parties the first two respondents being the landlords filed Execution Application No. 104 of 1996 for recovering possession of the suit premises by executing the decree for possession. A public notice was issued in that proceedings. The petitioner alleged that reading the said notice he came to know for the first time about the decree having been passed against him. He, therefore, filed H.R.P. Suit No. 1584 of 1996 and also filed Objection Application in Execution Application No. 104 of 1996. The learned trial Judge heard both the matters together and rejected the objections filed by the present petitioner in the Execution Application as also injunction prayed for in H.R.P. Suit No. 1584 of 1996. The petitioner, therefore, preferred the aforesaid appeals before the Appellate Bench of the Ahmedabad Small Causes Court. Having been unsuccessful before the said Bench, the petitioner has carried the matter to this Court as stated above.
5. The questions which have been agitated before this Court bear a little background of facts which need be stated before they are decided in these revision applications. The contesting defendants in the earlier proceedings raised a question with regard to validity of service of summons to the petitioner and the learned trial Judge was required to deal with the same in that proceeding, Viz., H.R.P. Suit No. 1975 of 1977. It is not in dispute that that suit proceeded ex-parte in so far as the present petitioner being defendant No. 1 in that suit was concerned. Referring to the deposition of defendant No. 2 in that proceeding (Lalchand Dhulchand) the learned trial Judge observed that at the time when the summons was served on him, Parshuram (Parashram) (the petitioner herein) was staying in the suit premises and again in the same breath the witness deposed that he had gone to London at that time. Referring to the further evidence the learned trial Judge has observed - 'It was admitted that he had informed Parshuram (Parashram) about the present suit and had also informed him that Parshuram was also party in that suit, but Parshuram had not replied the same. He has stated that he has not informed the Court about the address of Parshuram'. In the appeal filed by the other defendants being Appeal No. 243 of 1982 they raised question of service of summons on defendant No. 1 (petitioner herein) and the Appellate Bench formed question No. 5 as under:
Whether the defendant No. 1 Parshuram Lalchand Mawad is not duly served with the summons of the suit?
The Bench answered the said question to the effect that he was duly served with the summons of the suit. The Appellate Bench gave its reasons in para 9 of the judgment, which might be reproduced:
It is an admitted fact that the landlords have served the summons of the suit on the tenant by affixing it on the conspicuous part of the suit premises. The learned trial Judge from the evidence on record and after hearing the learned Advocates of the parties came to the conclusion that the affixing of the summons of the present H.R.P. Suit No. 1975 of 1977 on the conspicuous part of the suit premises is due service of summons under Order 5 Rule 20 of C.P.C. However, the appellant assignee's learned Advocate Shri C.M. Trivedi vehemently contended that the service of summons by affixing it on the conspicuous part of the suit premises cannot be said to be due service upon the tenant, in the facts and circumstances pointed out by him. Shri C.M. Trivedi pointed out that the landlords had previously filed 2 suits bearing No. 4805 of 1974 and No. 5203 of 1974 for injunction against the tenant and the summons of both the suits were served upon the tenant at Bungalow No. 15, Ronakpur Society, Shahibaug, Ahmedabad. In those previous two suits, it was the case of the landlords that the tenant has kept the suit premises locked and he has shifted his residence with a relative residing in Shahibaug locality and he was attempting to unlawfully sublet, transfer or assign the suit premises to a stranger. Even in the present suit bearing No. 1975 of 1977 the assignee or transferee, the sole appellant (original defendant No. 2) has filed his written statement at Exh. 15. At page No. 2 in para 10 of his written statement Exh. 15, the transferee has alleged that the tenant resides at London and the plaintiff has not served the summons upon the tenant at the London address inspite of his giving the London address of the tenant to the landlords. Shri C.M. Trivedi also pointed out that from the Rojnama of the suit, it is clear that the summons was served upon the tenant by affixing it on the prominent part of the suit premises. Subsequently, the affixed summons was returned to the Court, but the landlords failed to give any explanation regarding the correct address of the tenant and yet proceeded with the suit behind the back of the tenant. Shri C.M. Trivedi referred to the landlords' application Exh. 17 dated 12-12-1977 in the suit for substituted service. Shri C.M. Trivedi pointed out that even in this application the landlords have stated that the tenant has gone to America and his address in America is not known, but the tenant lastly resided in the suit premises. Under the circumstances, the landlords had prayed to serve the summons on the tenant at the address of the suit premises by affixing it on the conspicuous part. Under the circumstances, Shri C.M. Trivedi contended that even the order for substituted service by a fixation on the prominent part of the examination-in-chief, assignee Lalchand has admitted that when he himself was served with the summons of the present suit, the tenant Parshuram was also residing in the suit premises itself, but at that time he had gone to London. This inequivocal admission on the part of the assignee Lalchand clinches the issue clearly, and definitely established the fact that tenant Purshuram last resided in the suit premises itself, but he had gone to London and the landlord had no knowledge of the tenant's address at London. Therefore, once it is established that the tenant lastly resided in the suit premises itself, the service of summons by affixing it on the last known residence of the defendant-tenant Purshuram is due service under the provisions of Order 5 Rule 20 of C.P.C. Therefore, we do not find any substance in the various contentions and submissions made by the assignee- appellant's learned Advocate Shri C.M. Trivedi that the summons on the tenant-defendant - Purshuram was not duly served. Consequently, we are of the opinion that the service of summons upon the defendant -tenant Purshuram was due service and therefore, the judgment and decree for possession passed by the trial Court cannot be said to be illegal. In the result, we answer the above point No. 5 in the negative.
One of the other defendants, namely, original defendant No. 2 filed Civil Revision Application No. 305 of 1992 under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short 'the Rent Act') against the aforesaid Bench judgment and this Court (Coram: R.K. Abichandani, J.) rejected the said revision application by order dated 26-2-1992 inter-alia observing as under:..It was then contended that the summons were not properly served on the tenant-defendant No. 1. This aspect has also been duly considered by the lower Appellate Court, and it has been found on the basis of the evidence on record that the original defendant -tenant had last resided in the suit premises itself. The lower Appellate Court found that defendant No. 1 was duly served by way of substituted service under the provisions of Order 5 R. 20 of C.P.C. It will be noticed from Sub-rule (2) of R. 20 of Order 5 of C.P. Code that service substituted by order of the Court shall be as effectual as it had been made on the defendant personally. The lower Appellate Court has given cogent reasons for holding that the defendant No. 1 was duly served and there is no valid ground on which any different view should be taken in this Revision Application....
It might be noted with care that the respondent Nos. 1 and 2 had filed the aforesaid earlier suit for possession on the ground of change of user from residence to non-residence, unlawful sub-letting and/or assignment and arrears of rent and the decree for possession was passed on such grounds.
6. In the background of the aforesaid set of facts the questions which have been agitated by the petitioner in these Revision Applications are:
(i) The decree for possession is not executable, the same being invalid as the substituted service of summons to the petitioner in the original suit is bad in law since the same is not in accordance with Order 5 Rule 19 of the Civil Procedure Code ('Code' for short).
(ii) such substituted service would amount to fraud.
7. Dealing with the first question, Mr. Shah, learned Advocate appearing for the petitioner submitted that procedure contemplated under Rule 19 of Order 5 should have been followed by the trial Court in the original suit proceedings and that having not been followed, it could not be said that service of summons was validly effected to the petitioner. Rule 19 of Order 5 of the Code reads as under:
19. Examination of serving officer: Where a summons is returned under Rule 17, the Court shall, if the return under that Rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.
In support of his submission Mr. Shah has firstly placed reliance upon a decision in the case of Parasurama v. Appadurai, reported in : AIR1970Mad271 . Dealing with the aforesaid rule the Full Bench of the Madras High Court has, relying upon a decision of the Hon'ble Supreme Court in the case of Jamatraj v. State of Maharashtra, reported in : 1968CriLJ231 , held that the language of Rule 19 is imperative in nature and where the legislature has used the words 'shall' and 'may' in the same provision that would be an indication that the word 'shall' has been used in a mandatory sense.
8. Reliance has been placed upon the decision of the Apex Court in the case of State of J. & K. v. H.W. Mohammed, reported in : [1973]1SCR801 . There also reference has been made to Rule 19 of Order 5 of the Code. Dealing with the statutory provision contained in Section 239 of (J. & K.) Municipal Act (2008 Smt.) the Court has observed that no proof was adduced by way of affidavit of process-server or any other officer that attempt was made to serve notice personally and that mere averment that notice had been affixed on certain date did not dispense with the requirement of statutory provision contained in Section 239 read with Order 5 Rule 19 of the Code. Here also reference has been made to Order 5 Rule 19 of the Code.
9. Finally, reference has been made to a decision of the Gauhati High Court in the case of Shila Nath Mallik and Ors. v. Balabhadra Sutradhar and Ors., reported in . Reference in this case has been made to Rule 17 and Rule 19. Rule 19 has been reproduced hereinabove. Rule 17 of Order 5 reads as under:
17. Procedure when defendant refuses to accept service or cannot be found: Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for again, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
Dealing with the aforesaid rules the Gauhati High Court has said that the said provisions have been made to safeguard the interest of the defendant, who did not make appearance before the Court inspite of the process-server's report that summons has been served on the defendant either personally or otherwise; and to prevent the plaintiff from getting ex-parte decree in collusion with the process-server. It has further said that the trial Court, therefore, must ensure that the defendants have wilfully remained absent inspite of knowledge of the suit. It has to do this by examining the process-server and other witnesses as it thought fit before deciding to hear the suit ex-parte. For this purpose, Order 9 Rules 6(1) and (1)(a) of the Code has been relied upon. The Court has clearly focussed its attention on the observance of the provisions of Rule 19, which would operate in conjunction with Rule 17. It might also be noted that Rule 19 in terms refers to Rule 17.
10. Mr. Shah also placed reliance upon para 36 of the Civil Manual, Volume I, which would read as under:
Where the service is effected by affixing a copy of the summons, the Court has to make inquiry under Rule 19 of Order V, and when the summons is not duly served the above rule provides that the Court should order such service as it thinks fit. When the summons has been duly served it is incumbent on the Court to record a distinct declaration to that effect and to file it with the papers. This rule applies even in case a summons received from other Courts for service.
Mr. Shah has then relied upon a decision of this Court in the case of Ismail Haji Mohammed Abraham and Anr. v. State of Bombay (now Gujarat) reported in (1966) VII GLR 208 saying that the rules framed by the High Court should be followed and if breach is committed, the same would render the order of the Court or the judgment of the Court not in accordance with law. This Court was dealing with circular No. 410 read with Order 41 Rule 11 of the Code.
11. For the purpose of making good his submissions Mr. Shah has made reference to the following documents from the record of the original proceedings before the trial Court.
Exh. 17 of the original proceeding (C.S. No. 1975 of 1977) is an application dated 12-12-1977 given by the plaintiffs stating therein that the matter was for clarification with regard to service on defendant No. 1, but defendant No. 1 (petitioner herein) had gone away to America and it was not possible to get his address of America and that he was last residing in the suit premises and that it would be necessary to serve the summons to defendant No. 1 by affixing the same at the address shown in the plaint and that the summons be accordingly served. It is not in dispute and it cannot be disputed that efforts for effecting direct service to defendant No. 1 did not fructify and, therefore, it became necessary for the plaintiff to give application Exh. 17. The order passed by the Court would indicate firstly that the application was kept for hearing and next day (on the date of hearing) order was passed on the application to the effect that summons should be affixed as prayed for.
Next documentary which has been referred to by Mr. Shah is Exh. 18, which is dated 12-12-1977. The same is the affidavit in support of Exh. 17.
Exh. 19 which is referred to by Mr. Shah is the application given on behalf of the plaintiffs in the said proceedings complaining of the bailiff not making efforts to effect service of summons to defendant No. 1 by affixing the same on the conspicuous part of the suit premises (the address of the defendant No. I shown in the plaint) as directed by the Court. This was made on 18-2-1978. The order passed on this application reads 'recorded'.
Lastly, Mr. Shah made reference to Exh. 20, which is a Pursis given by the plaintiffs' learned Advocate stating therein that the summons has been served by affixing the same at the place of defendant No. 1 's last residence and the bailiffs report to that effect has also been produced on the record and that defendant No. 2 in the said proceedings had employed an improper practice of producing the affixed summons in the Court and finally that the summons was lawfully served upon defendant No. 1. The Court has recorded the said Pursis.
Mr. Majmudar has also placed reliance upon the bailiffs report, which finally indicates that the summons was served on 10-3-1978 by affixing the same as directed by the Court. The bailiff has also made an endorsement stating that he was making affidavit (stating on oath) that he had reported the service of summons as aforesaid, which endorsement is dated 13-3-1978. Mr. Majmudar has also relied upon the judgments in H.R.P. Suit No. 1975 of 1977, Civil Appeal No. 243 of 1982 and C.R.A. No 305 of 1992, reference to which has been made in the opening part of this judgment.
12. It is no doubt true that the petitioner being not present before the Court when the aforesaid judgments were rendered in the earlier proceedings will not be bound by the observations made therein. At the same time, it is a matter of fact that the question of service of summons was agitated in the Court in the earlier proceedings and, therefore, it can hardly be said that there was non-application of mind on the part of the Courts dealing with the proceedings in the suit bearing H.R.P. Suit No. 1975 of 1977.
13. It has been submitted on behalf of the petitioner that Exh. 17 is nothing but an application moved by the plaintiffs in the suit proceedings for effecting direct service as contemplated by Rule 17. This submission deserves to be rejected in as much as admittedly there had been already a procedure followed for effecting direct service as contemplated by Rule 17 of Order 5 of the Code and that was the reason why the plaintiffs were required to render their explanations with regard to further steps being taken for effecting service to defendant No. 1 (petitioner herein). In my opinion, the said application is nothing but an application praying before the Court for passing an appropriate order under Order 5 Rule 20 of the Code. It would, therefore, be necessary to quote what Rule 20 says:
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.
(1A) 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.
Effect of substituted service: (2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
Where service substituted, time for appearance to be fixed: (3) 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.
14. It might be noted from the plain reading of the aforesaid provision that the same is different in contents from Rule 19. It might also be noted from the plain reading of the aforesaid rule that the stage at which Rule 20 comes into play is different from the stage at which Rule 19 comes into play. It is clear that the stage at which Rule 20 operates is a stage of substituted service of summons pursuant to the order passed by the Court; Rule 19 obviously operates in the field of direct service. This is precisely the submission of Mr. Majmudar, learned Advocate for respondent Nos. 1 and 2 and deserves to be accepted. He has placed reliance upon firstly a decision of the Apex Court in the case of I.T. Commissioner v. Daulat Ram, reported in : [1967]65ITR603(SC) . Dealing with the aforesaid provision of the Code, the Apex Court has ruled as under:
It seems to us that the last ten words in Sub-rule (1) of Rule 20, do confer a discretion on the Court to adopt any other manner of service. The sub-rule prescribes one manner which the Court may follow and this manner consists of two acts: (1) affixing a copy of the summons in the Court house, and (2) affixing it in some conspicuous part of the residential house or the business premises of the defendant.... The alternative manner which the Court decides to adopt for serving must of course be such as gives notice to the persons to be served.
In the present case, the process-server's report and endorsement on his affidavit would clearly indicate that the summons was served not only by affixing it on the outer side of the premises wherein the defendant No. 1 last resided but also affixing the same on the conspicuous part of the Court premises.
15. Mr. Majmudar then made reference to a decision of this Court in Bhagwanji Thakkar v. P.J. Patadia, reported in [1995(2)] XXXVI(2) GLR 1438. In my opinion, in the facts of the case that decision will not provide any guidance to this Court as the same is essentially rendered on the facts of that case and on the revisional jurisdiction to be exercised by this Court under Section 115 of the Code, in the context of the provision of Order 39 Rules 1 and 2 thereof.
16. Mr. Majmudar has also made reference to the decision of the Hon'ble Supreme Court in the case of Krishna Singh v. Mathura Ahir, reported in : AIR1982SC686 . In that case a suit for recovery of property belonging to Math was decreed by the Munsif and the same was finally affirmed by the Supreme Court holding that the plaintiff was in de facto management of the property though his title as Mahant was left open and further holding that the defendant in the suit was a trespasser. The defendant preferred application for stay of execution under Order 21 Rule 29 of the Code and the Civil Judge allowed the said application. The Supreme Court observed that the order passed by the Civil Court was nullity and also violative of Article 141 of the Constitution of India. It appears from the facts of the case before the Apex Court that the defendant Krishna Singh had undertaken the proceedings by filing an appeal by special leave to the Supreme Court. Thus, the defendant Krishna Singh having lost all throughout could not be heard in his Civil Suit raising almost the same pleas which he had taken in defence of the previous suit. In my opinion, this decision will not apply to the facts of the present case.
17. If the language of Rule 17 read with Rule 19 is compared with the language of Rule 20, it would be clear that the provisions operate at different stages and under different situations. If the contents of Rule 19 are read into Rule 20, it would amount to re-writing Rule 20, which is plainly not permissible. The decisions which have been referred to by Mr. Shah essentially deal with Rule 19 of the Code and will, therefore, clearly be not applicable to the present case. In my opinion, the service effected on defendant No. 1 (petitioner herein) in the original proceedings viz. H.R.P. Suit No. 1975 of 1977 was quite legal and valid as held even in the said proceedings throughout upto this Court. In that view of the matter the petitioner will not succeed on the first question raised by Mr. S.M. Shah.
6-5-1997
18. The second question relates to whether there was any fraud practised by the first two respondents against the petitioner. It has been submitted on behalf of the petitioner that the other defendants, who happened to be on the record and who contested the earlier suit, had supplied petitioner's address of London to the first two respondents. Instead of proceeding to serve the process to the petitioner at such address, respondent Nos. 1 and 2 had opted for substituted service and that is how they committed fraud on the Court and also against the petitioner. Mr. Shah, therefore, submits that all the proceedings in so far as the petitioner is concerned would stand vitiated. In support of his submission he has placed reliance firstly upon S.P. Chengalvaraya Naidu v. Jagannath, reported in : AIR1994SC853 where the Apex Court has observed that a person whose case is based on falsehood has no right to approach the Court and that he can be summarily thrown out at any stage of the litigation. Mr. Shah, also placed reliance on the case of Gowrishankar and Anr. v. Joshi Amba Shankar Family Trust and Ors., reported in : [1996]2SCR949 , where relying upon the observations in the earlier decision in the case of S.P. Chengalvaraya Naidu (supra) it has been observed that a judgment or decree obtained by fraud is nullity and non-est in the eyes of law and the same can be challenged in any Court even in collateral proceedings. Whereas there is no doubt with regard to the principle set out in the aforesaid decisions, the present case does not reflect any facts which would go to indicate even slightest fraud having been practised by the first two respondents. Assuming that the other defendant/s had given petitioner's address of London, it would be open to the first two respondents either to act upon such information given by the adverse party or not to act upon such information. It can hardly be said that respondent Nos. 1 and 2 had knowledge about the petitioner's address of London to be the correct address. As a matter of fact, the facts flowing from the judgments of the earlier proceedings would clearly indicate that the other defendants did not even supply the address of the petitioner to the Court, if in fact they were knowing about the petitioner's address of London. There is one more aspect of the matter. The petitioner being a tenant of respondent Nos. 1 and 2 could have himself supplied his address to the first two respondents before or soon after leaving for abroad so as to enable the landlords to communicate with him particularly when he had in the recent past appeared and defended two earlier suits for injunctions. Finally, the petitioner himself has not filed any affidavit. Instead, his Power of Attorney has handled the present litigation. Bearing in mind the facts and circumstances of the case, the submissions made by Mr. S.M. Shah, learned Advocate for the petitioner on the second question cannot be accepted.
19. The contention which was raised before the lower appellate Court was without any particulars except saying that fraud was committed by not serving the summons to the original tenant directly and by serving the summons by substituted service. The lower appellate Court has dealt with the contention in its decision impugned in these petitions and giving cogent reasons, has negatived the said contention. There is no reason to interfere with such a finding of the appellate Court.
xxx xxx xxx
20 In view of what is stated above, rule is discharged in each petition with no order as to cost.
(Rest of the Judgment is not material for the reports).