x @ Am ’\ \ HIGH COURT OF CHHATTISGARH: BILASPUR Writ Petition (227) No. 1043 of 2009 Petitioner Abdul Rashid, aged about 58 years, s/o. Late 2. Jimmi Barzorji Karbliari aged about 76 years s/o. Shri Barzorp Karbhari caste ParSI occupation Business. 3. Smt Roshan J Karbhari w/o Jimmi Barzorji Karbharr aged about 70 years 4. Mancher Karbhari, aged about — 5O years, s/o. Jimmi barzorji, Karbbari. Respondent 2 to 4 r/o. K/42, Makers Tower, Cuff-Pared, Kolaba, Mumbai, (MH). (Writ Petition under Article 227 of Constitution of India) SB: Hon’ble Mr. Satish K. Agnihotri, J. Present: Mr. Vaibhav Goverdhan, counsel for the petitioner. Mr. Shashank Thakur, Panel Lawyer for the State. ORAL ORDER (Passed on this 19‘“ day of February, 2009) By thisipetition, the petitioner seeks to challenge the legality, validity and propriety of trfe order dated 7-11—2008 (Annexure P/1) passed by the learned Additional District Judge, Bilaspur, passed in Civil Suit No.06-A/2008 (Abdul Rashid Vs. Jirhmi Barjorji Karbari and three others), whereby the application of the petitioner filed under Order 5 Rule 20 read with Section 151 of the Code of Civil Procedure 1908 (forshort “CPC") wasturned down 2) The brief facts In nutshell are that the petitioner/plaintiff filed a CIVII suit for declaration of title and possesSIon before the court below The suit has been instituted on the ground that the petitioner/plaintiff has purchased the double storied suit house for Rs 6 00 000/— in the year 1993 from the respondents No 2 ?Za //n Plaintiff I Shri Abdul hafiz r/o Link Road in front of C.M.D. Coliege,’ B'iiaspur, Tah’sil & Dist. Bilaspur (CG). Versus Respondents 1. i Sfate of Chhattisglarh, through Collector, Defendant‘s Bilaspur (CG). i ‘ \\\ 11 x ‘ s r . to 4 sltuated at Juna Bllaspur Within the premIsJs of Mumcupal Corporation ‘ , , Bllaspur Ward No 14 Vlnoba Nagar bearlng Khasra Nos 661/2 646/5 661/3 & 661/4 admeasunng 6108 69 sq ft The posseSSIon of the suit house has been I handed over to the petltloner/plamtlff and one doc ment to that effect was also t _ I executed by the respondent No 3 on 8 7 1993 (An exure P/3g) The petmoner ‘ has already paid the entire amount to the respondents but they are not? _ ' executmg the sale deed In favour of the petitioner Thereafter petltloner filed a ‘ suit agalnst the respondents before the court beloiw on 17 7 2008 and on the same day notlces were drrected to be Issued to the respondents The petitioner v L paid the process fee on 17 7—2008 (Annexure P/4) On 11 9 2008 the notrces of the respondents No 2 to 4 returned unserved and the notrce could be served only _ on respondent No 1/defendant and the case was adjourned to 29 9 2008 On ’29 9—2008 agarn notlces were drrected to be Issued‘to the respondents No 2 to 4 Wby ordr post as well as by registered AD wrthm three days and the case was V. fixed on 7 11-2008 On 29 9 2008 he petltloner also pard the precess fee, V (Annexure P/6) and the notlces were agarn Issued to the respondents No 2 to 4 On 7 11 2006 notices sent to the respondents were received back unserved With an endorseméent that the respondents No. 2 to 4 were not residing at the given address On7—11—2008 the petitiOner‘rnoved an application under Order 5 Rule. 20 of the CPIC statlng that smce the notices sent to the respondents 2 to 4 returned unserved tWIce With an endorsement that the respondents were not: _ re‘Sldlng at the given address the petitioner may be permitted to serve the ‘ respondents N02 to 4 through paper publication The court below by order/7 - -_ ‘ I _' dated 7 11 2008 has rejected the said application Hence this petition ' 3) Learned counsel appeanng for the petltloner submits that the trial Court while dealing With the said application ought to have appreCIated the sole object ' [:of the prOVISIon of Order 5 Rule 20 of the C P C I e the other party should not-g I ‘ :be condemned unheard Learned counsel further submits that the trial Courtg; T ‘ ought to hav1e,permltted the petitioner to take recourse to the prOVISIons of law. a _ , I um .,4” I n add f pds. ress o the resonent he trial éurt‘ ought to have appreciated that the pe’titi’one‘r as mae al/efori o serve h respondents throug notces, u ee espondens cou not rved. Further, the trial Court has grossly erred in hdi th t ibnt n se olng at i is ncume o t p’ i g fd, The courts below have not at all aprciated the facts and circumstances of case in’ s etter an spir nd passed the ord‘ers’,;therefore, the order passed by the trial'Ou is ga an Cntra Ory p the heard learned counsel apearlng for; the petltloner perused dd thto pleadlngs and documents appene ere t tht 5) On perusal of the order dated 7 11 2008 (Annexure P/1) l appears a th t Co ‘V‘hl d Od 5 R f e hd tt t o th lintiff/pitine to rc addres o te defendants/respondes o serve th thefe, petiinr cannot be permitted to'serve them throuh eror toe g vertisemen; adt 6 rder é the C deals wih'issue an svce o mn rer ule 20 fitheg CP rovies or sbsttuted service wc‘ reas asun s :pé f t ince the titioner has noxknowledge o the correci T C h d lfs t te h i bt th rt ld be he laint‘ to ive‘correctaddress of the deenants pe the it l d it a ‘ crt illel d -r'o’visio‘n‘s of law and the same deserves to e quashe ep b d, ) i 4 / l l e rlal as‘reected‘the appllcatlon flled by the ‘petltloner uner rer ule 2‘0 o th C.P;C., oling ha it is incumben n e paetor oret s f h nt t em, Substltuted serVIce —() ere the owt atled ther ls reason to belleve a th defendant ls keeplng out of the way or the purpose o av0ldln serwce or that for any oer reason th uon cannot be served ln the orlnar wa, th smms dy y e Cut s e b d by a f l n fflxmg a copy thereo ln some consplcuous pace l he ou ouse an also uon some cocuou art of the house (lf any) ln whloh the deendant nown t ave d o b r k o h last reSled r carrled on usmess o ersonally worked or galn, or ln suc oer mann s the Court ts l 1-A Where the Court aotmg under sub rule ( rders serwce b an averlsement ln a news NW4 , w* or hall order th summons to e serve egg»; know th ) O of PC t d eri f sumos; Od 5 R o C pd f ui ihih d der: 0 1 Wh C ls sfl that e tht e“ f f g th e m t Crt H d p nspls p f ls p f h th er a hlnk ft l \ ‘t() 1 o y dt paper 4 "'.— e newsaper saH e a ail newspaer circulati th p h b dy p ng in the locality in whic te defenant is as own have actually rand voluntarily resi ed, carre business y ( Effect d b d h or personall worked for gain] 2) r of ‘ substituted ‘ service—«Servi substitute y orer of te Court shal be as effectual s if it had been made on te defendant personall. ubstituted, ppearance to be fixed.—Wh (3) ere re serVlc ubstituted by orer of the ourt, the Court shall fi uch time for the appearance of the defendant as t aSe may requll'e. tim service e i 7)’ On: bare perusal of the provisions of Rule 20 of the CPC it is obvious that 1 t p o purpose of avoiding service, or that for any oter reason te summons cannot be : h h served in5the‘ ordinary way, th Cort shall order the summons to be served by l affixng a kcopfy thereof in some conspcuous place in the Court House, and also * i i upon some conspicuous part of he house (f any) n which the defendant is , f known to have last resided or carried on business or personally worked for gain, or in such othler manner as‘the Cort thinks fit u . W8) f the a'bove stated modes of sevice have been exhausted then the court ‘ may order siervice by advertising in a newspaper ln the present case the pettioner ha:s not attempted to produce correct address of the defendant. i Thereafter he has not taken any action to serve he humdust notice by affixing a ; t copy of the summon. Thus at this stage the Court has rightly rejected the r l , t should first take steps to affix the notice on the correct and proper address of the d e u t i i l r . i , publication of summon in the newspaper. Accordingly the petitioner/plaintiff efendant. xlf it was not possible to serve the summons on the basis of above s l l prescribed mtode's, the Court may consider to permit the service of summons by t l dvertising in: newspaper. Thus, the o‘rder impugned is in accor\dance with law. l m of the cohsideredbpinion that the finding of the court below does not suffer a n“ h h d lt kn to id on ce a h y Wh s a e s d C x s he c i the Courtihas to be satisfied that the defendan is keeing out f the way for the 5 a g rom jurisdictional error, irregularity or illegality. Thus, the order is unexceptiOna f l and nee’dsino interference. 6 It iS>i well—nigh established that this court in exercise of its supervisor .) j urisdiction:under Article 227 of the Constitution of lndia, should refrain itself from interfering zwith the order passed by the courts below, except in such c‘aSes where peniersity, illegality, irregularity or jurisdictional error is writ large on th face of thteirecord, which is not in the present case. 7) In'view of the foregoing, this petition is dismissed, in limine. owever iberty is ieserved to the petitioner to take above stated steps for Servin ummonsbefore taking recourse to advertisement in neWspaper s . 8) Consequently, l.A.No.1 also‘standsdismissed; ' ; L Judge f Sd/- 7:3" Satish K. Agnihotri _ y e H, l g 1 i