Substituted service cannot be ordered without recorded satisfaction that ordinary service was deliberately avoided.

The respondent-landlord instituted Title Eviction Suit No. 48 of 2007 against the appellant, asserting that she and her father were his tenants. The suit was dismissed by the Civil Judge, Junior Division No. 1, Dhanbad on 25.08.2017.

The respondent preferred Civil Appeal No. 96 of 2017, which was allowed ex parte on 17.01.2019. The appellant thereafter filed a petition under Order XLI Rule 21 of the CPC, registered as Misc. (Civil) Case No. 68 of 2019, seeking recall of the ex parte appellate judgment.

The Additional Sessions Judge dismissed that petition on 10.08.2022, holding that notice had been duly served through registered post and subsequent paper publication. The appellant contended that she had neither been served nor informed of the paper publication.

The matter reached the High Court after conversion of the original writ petition into a CMP and subsequently into the present miscellaneous appeal under Order XLIII Rule 1 CPC.

Whether the dismissal of the appellant’s petition under Order XLI Rule 21 CPC was sustainable when the record did not establish valid service of notice or proper satisfaction before resort to substituted service.

Whether the High Court could entertain the matter after the proceedings had initially been instituted under an incorrect procedural remedy and were subsequently converted into the present miscellaneous appeal.

Whether the order dated 10.08.2022 in Misc. (Civil) Case No. 68 of 2019 was liable to be set aside and the matter remanded for fresh adjudication.

The Court applied Order XLIII Rule 1 CPC concerning appeals against specified interlocutory orders and Order XLI Rule 21 CPC concerning rehearing where an appeal has been heard ex parte.

It relied on Order V Rules 12, 15, 17 and 20 CPC, holding that substituted service is an exceptional and last-resort procedure, permissible only after reasonable attempts at ordinary service and a judicial satisfaction that the defendant is avoiding service or that ordinary service is otherwise impracticable.

Relying on Smt. Yallawwa v. Smt. Shantavva, AIR 1997 SC 35, the Court held that substituted service cannot be granted automatically merely because ordinary service has failed; the Court must first undertake the prescribed ordinary procedures and record appropriate satisfaction.

The Court also applied the principle that invocation of an incorrect legal provision or procedural remedy should not defeat a party’s substantive right where the matter can otherwise be considered in accordance with law.

The High Court found that the registered notice had been returned with an endorsement that the appellant was not residing at the stated address, but the order under challenge did not disclose the address to which the notice had been sent or establish that it was correct.

The court below had also failed to record a specific satisfaction that the appellant was deliberately avoiding service despite repeated attempts. Further, the process server had not been examined, and the record did not adequately establish compliance with the ordinary modes of service before paper publication was ordered.

In light of Yallawwa, the resort to substituted service and the consequent finding that the appellant had intentionally avoided appearance were therefore procedurally unsustainable.

The High Court additionally held that the appellant’s initial pursuit of a writ petition and CMP, later converted into an appeal with leave of the Court, could not by itself extinguish her right to challenge the order.

The miscellaneous case was restored to the file of the Additional Sessions Judge, Dhanbad, for fresh consideration in accordance with law and on merits.

Both parties were directed to appear before that court on 29.09.2026 at 10:30 a.m.; they were directed not to seek unnecessary adjournments and to endeavour for early disposal of the matter.