Case: M/s. Neerja Realtors Pvt. Ltd Vs. Janglu (Dead) Thr. Lr

The subject matter of the suit for specific performance is an agreement dated 15 July 2006 entered into by the appellant with the original defendant in respect of agricultural land admeasuring 1.66 Hectares (4.07 acres) situated inTahsil Hingna, District Nagpur. The total consideration payable under the agreement was Rs 13,04,391 out of which an amount of Rs 3,26,000 was recorded to have been paid. The balance of Rs 9,78,391 was to be paid at the time of the execution of the sale deed.4. On 30 June 2007, Shobha, who is the daughter of the original respondent instituted a suit (Old Regular Suit No 726/2007 which was renumbered as Regular Suit No 269/2008) against her father and the appellant for partition, possession and for declaratory and injunctive reliefs in relation to the land. In that suit the plaintiff claimed that her father was in dire financial need and had obtained a loan from the appellant and that as security, the appellant got certain documents executed. According to the plaintiff, the agreement was vitiated by fraud and misrepresentation and the land being ancestral property, the agreement was not binding on her. The original defendant entered appearance and disclosed his residential address in a proceeding under Order VIII Rule 11 of the Code of Civil Procedure, 1908 (‘theThe appellant also filed her written statement. The suit was dismissed on 8 July 2010 on the ground that the land belonged to the original defendant and that the plaintiff had no right, title and interest.5. On 5 February 2011, the appellant filed a suit for specific performance (Suit 184 of 2011) of the agreement to sell dated 15 July 2006. On 9 February 2011, the Trial Court issued notice to the original defendant for settlement of issues. It appears that summons were issued on two occasions to the original defendant but were returned unserved. On 11 April 2011, the bailiff submitted a report stating that when he went to serve the defendant, he was informed by persons residing in the village that he had left the premises two years earlier and was residing elsewhere. The summons were returned since the defendant was not residing at the address given therein.6. The appellant filed an application for substituted service under Order V Rule 20of the CPC on 2 September 2011. The Trial Court allowed the application on the same day in terms of the followingS/S to deft. u/o 5 R 29of CPC at the expense of the Plaintiff.The appellant claims to have effected substituted service by publication in the Marathi daily Lokmat. On 29 November 2011, the Trial Court passed the followingserved on public notice in daily news paper Lokmat on 04.10.2011 but he remained absent. Suit proceeded ex parte against the defendant. Suit proceeded ex parte against the Deft.The suit was decreed on 13 June 2014 and the appellant was directed to deposit the balance consideration of Rs 9,78,391 within one month.9. The appellant claims to have deposited the amount on 17 July 2014.10. On 12 September 2014, the original defendant filed a first appeal under Section 96 of the CPC before the High Court. He died on 21 August 2015. The appellant submitted an application for bringing his legal representatives on record. The application was eventually allowed on 23 September 2016.11. The High Court by its judgment dated 7 July 2015 held that neither the report of the bailiff nor the order of the Trial Court indicate that a copy of the summons was affixed in a conspicuous place on the court house and at the house where the defendant was known to have last resided. The High Court held that there was a breach of the provisions of Order V Rule 20 (1) of the CPC. The High Court observed that the order of the Trial Court permitting substituted service was cryptic and that the Court had not recorded its satisfaction that the defendant was keeping out of the way to avoid service or that the summons could not be served in the ordinary manner for any other reason. Moreover, the serving officer had not followed the procedure stipulated in Order V Rule 17 where the defendant was not found to reside at the place where he was last residing. The Court noted that besides the service to be effected through the bailiff, the summons were not sent to the defendant at the address furnished by the plaintiff by registered post, with acknowledgment due. The High Court also found that the Trial Judge had ignored the provisions of Chapter III of the Civil Manual issued by the High Court on the Appellate side for guidance of Civil Courts and officers subordinate to it.The record before the Court would indicate that the Trial Court by its order dated 9 February 2011 directed the issuance of summons to the original defendant, returnable on 15 March 2011. In pursuance of the order, summons were issued on 4 March 2011. The report of the bailiff dated 11 April 2011 indicates that the summons were returned unserved and the bailiff was informed that the original defendant had left the premises nearly two years earlier and resided elsewhere.

Reasoning:
A defendant against whom andecree is passed has two options: The first is to file an appeal. The second is to file an application under Order IX Rule 13. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application under Order IX Rule 13. But if the appeal is dismissed as a result of which thedecree merges with the order of the Appellate Court, a petition under Order IX Rule 13 would not be maintainable. When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Sectionthe present case, the original defendant chose a remedy of first appeal under Section 96 and was able to establish before the High Court, adequate grounds for setting aside the judgment andas the report of the bailiff indicates, he was unable to find the defendant at the address which was mentioned in the summons. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order V Rule 17. When the application for substituted service was filed before the Trial Court under Order V Rule 20, a cryptic order was passed on 2 September 2011. Order V Rule 20 requires the Court to be satisfied either 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. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the Trial Court failed to apply its mind to the requirements of Order V Rule 20 and passed a mechanical order. Besides this, as observed by the learned Single Judge of the High Court, the Trial Judge ignored the provisions contained in Chapter III of the Civil Manual issued by the High Court on its appellate side for the guidance of civil courts and officers subordinate to it.