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Om Prakash v. Prakash Chandra And Others - WRIT - C No. 24922 of 2004 [2004] RD-AH 297 (8 July 2004)


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Civil Misc. Writ Petition No.24922  of 2004

   Om Prakash                           ......... Petitioner


   Prakash Chand &  Ors. ......... Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. Umeshwar Pandey, J.

(By Hon.Dr. B.S. Chauhan,J)

This writ petition has been filed before this Court to abuse  the process of the Court without knowing anything about the law. A suit has been filed against the petitioner for eviction from the premises which was decreed by the Civil Court vide judgment and decree dated 9/7/1996. Being aggrieved, petitioner preferred the first appeal which was dismissed in default vide order dated 11/10/2000. Application for restoration was filed which was rejected by the First Appellate Court vide order dated 23/10/2002. Against that, the petitioner approached this Court by filing a Writ Petition No.3089 of 2003 and this Court vide order dated 16/12/2003 allowed the writ petition, and restored the first appeal. Petitioner filed a copy of the said judgment/order before the First Appellate Court and in order to hear the appeal, notices were issued to the respondents therein. First time the matter was taken up before the First Appellate Court on 3/2/2004 and an application for amendment was preferred by the petitioner on 19/2/2004. Notices were issued to the respondents in the First Appeal. However, one of the respondents remained un-served as the learned First Appellate Court was satisfied that one of the respondents therein could not be served the order dated 9/3/2004. Fresh notices were issued and as the same also could not be served and there was no report of service, the learned First Appellate Court again passed the order on 25/3/2004 to issue fresh notice to the said respondents fixing the date as 24/4/2002 and when the matter was listed on 24/4/2004, the  First Appellate Court was of the considered opinion that the said respondents had not been served, therefore, fresh notices were directed to be issued. The petitioner did not consider it proper to take any proper steps as per the order of the appellate court dated 24/4/2004, therefore, instead of dismissing the appeal in default or for non-prosecution and particularly for non-compliance of the order dated 24/4/2004, the appellate court further issued notices to the said respondents on 12/5/2004.

Petitioner filed an application that the unserved respondents be served by substituted service by publication in the local newspapers. However, the appellate court directed the service of notice by registered post for which steps were required.

Petitioner does not disclose as to whether he has taken steps in pursuance of the order of the First Appellate Court dated 12/5/2004, and has filed the petition raising the grievance that his application for service by substituted mode has not been allowed. Learned counsel for the petitioner is not aware as under what provision application for substituted service is permissible and what are the circumstances for moving the application.    

Order 5 Rule 20 of the C.P.C. provides for service of summons in the suit and the appeals by substituted mode and  Clause 1 of the same reads as under:  

"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's house........"

Further, Clause (1-A) thereof reads as under:-

"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."

Thus, the aforesaid provisions of the C.P.C. make it clear that substituted service is permissible, provided the Courts record the reasons after being fully satisfied that the service cannot be effected in an ordinary manner and it cannot be taken as a matter of right. Party cannot ask the Court that it wants to serve the defendant/respondent by substituted service. The Courts have deprecated the practice of filing such an application and categorically held that substituted service is not permissible unless the Court records the reasons reaching the conclusion that it is not possible to serve the defendant/respondent in an ordinary manner.

A Division Bench of the Calcutta High Court in Teharoochand Vs. M/s Surajmull Nagarmull; AIR 1984 Cal 82, considered the issue and held as under:-

"Before issuing summons under Order 5, Rule 20 of the Code, the Court is to be satisfied that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason summons cannot be served in the ordinary way. Before such satisfaction, the Court has to consider the case carefully having regard to the nature of the earlier attempts made for the service of summons. Mere assertion of the plaintiff in this respect to attract the provisions of Order 5 Rule 20 of the Code will not be enough. Only when the Court is satisfied from the materials on record 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 summons cannot be served in the ordinary way, the Court will be entitled to order service of summons under Order 5, Rule 20 of the Code".        

Similar view has been reiterated in Ram August Tewari & Ors Vs.  Bindeshwari Tewari & Ors; AIR 1972 Patna 142.

In Ambika Prasad Vs. Kodai Upadhya; AIR 1945 Alld. 45, this Court considered a case where the defendant could not be served being detained in jail and it was held there that in such a situation as the defendant could not be served, the proper procedure would be to issue processes for substituted service under Order 5 Rule 20 of the C.P.C. and then to proceed with the trial of the suit.  

In  Smt. M.L. Nagarathnamma Vs. S.R. Suryanarayan Rao 1985  NOC 214 (Kant), the Division Bench examined a case where summons could not be served in a suit on the defendant teacher on account of her transfer and request was made to serve her by substituted service. The Division Bench of the Karnataka High Court held that unless the enquiry is held and Court comes to the conclusion that she was evading the service, the question of serving her by substituted service did not arise.

Thus, in view of the above, we are of the considered opinion that the application filed by the petitioner to serve the unserved respondents in the first appeal could not be entertained. However, it is a case where the petitioner wants to have a litigation as a luxury and waste the time of the Court and wants the Court to move at his whims. Filing this kind of application  not only wastes the time of the Court, but amounts to abuse of the process of the Court.

In  Dr.   Buddi  Kota  Subbarao  Vs.   K Parasaran, AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-                    

"No  litigant  has a right  to  unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes.  However, access to  justice  should not be misused  as  a licence   to   file    misconceived   and frivolous petitions."

Similar view has been  reiterated by the Supreme  Court  in  K.K.  Modi  Vs.   K.N. Modi, (1998)  3 SCC 573.                                        

In Tamil Nadu Electricity Board & Anr. Vs. N. Rajureddiar & Anr. AIR 1997 SC 1005 the Hon'ble Supreme Court held that filing successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must be dealt with a very heavy hand.

In  Sabia Khan & ors.  Vs.  State of U.P. & ors., (1999)  1 SCC 271, the Hon'ble Apex Court held that  filing  totally misconceived  petition amounts to  abuse of the process of the Court and such litigant  is  not required to be dealt  with lightly.

In  Abdul Rahman Vs.  Prasoni Bai & Anr., 2003 AIR  SCW 14, the Hon'ble Supreme Court  held that wherever  the Court comes to the  conclusion that the  process  of the Court is being  abused, the Court  would  be  justified  in  refusing  to proceed further   and  refuse   the  party  from pursuing the remedy in law.

In view of the above, we are of the considered opinion that this writ petition has been filed as an abuse of the process of the Court  and is dismissed with the cost of Rs.20,000/-.

A copy of this judgment and order be sent to the District Collector, Meerut, and he is directed  to recover the aforesaid amount from the petitioner Om Prakash son of Late Munni Lal r/o House No. 48, Begum Bagh, Chakkiwali Gali, Meerut City as arrears of land revenue and deposit the same with the Legal Services Committee, High Court Allahabad,  within a period of six weeks.

A copy of this judgment may be sent to the District Collector, Meerut, through the Registrar General of the Allahabad High Court for compliance.




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