(1) THE only point I have been called upon to decide in this revisional application under section 115 of the Procedure Code (5 of 1908) at the instance of a tenant whose defence against delivery of possession has been struck out under section 17, sub-section 3, of the premises Tenancy Act (12 of 1956) is : the writ of summons having been served upon him, not personally, but by the method known as substituted service under order 5, rule 20, of the Code, are the penal provisions of section 17 of the Premises Tenancy Act attracted, -calling upon him to deposit or pay rent within one month of the service of the writ of summons upon him

(2) MR. Mukul Prokash Banerjee, the learned Advocate appearing for the petitioner, contends they are not. By order 20, sub-rule 2, of the Code it is prescribed : "service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. "

(3) MR. Banerjee does not pass it by. He submits that this "deeming" provision holds good only for the purpose of Order 9, rule 6, sub-rule 1, clause (a), by which it is provided that where the plaintiff appears and the defendant does not, when the suit is called on for hearing, then if it is proved that the summons was duly served, the court may proceed ex parte. Such a deeming" provision, Mr. Banerjee concludes, has little to do with section 17 of the Premises Tenancy Act, a penal section which can only be invoked if the tenant has the writ of summons served upon him personally.

(4) ANALYSING the provisions of section 17, sub-section 1, Mr. Banerjee further submits that what bulks large is an admission on the part of the tenant. But, how can there be an admission, mr. Banerjee asks, when no personal service is there, when the service that is there is what is known as a substituted service, - an apology for personal service

(5) THIS interesting matter needs hooking into in two ways. First, why substituted service at all instead of service in the ordinary way which means personal service upon the party sued Second, what at law is the affect of that mode of service known as substituted service

(6) ABOUT the first way, what calls attention is Order 5, rule 20, sub-rule 1, of the Code. It provides inter alia that 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, the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the courthouse and also upon some conspicuous part of the house 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. Now, the orders recorded by the learned judge in the order-sheets appear to be a revelation. First, the writ of summons was served by affixation : vide order No. 2 dated may 15, 1963. The judge was not satisfied by such mode of service and, accordingly, ordered issue of a fresh writ of summons by registered post with acknowledgment due : vide order no. 3 dated May 22, 1963. That yielded no result. The registered cover came back with an endorsement from the postal peon : refused : vide order no. 4 dated June 11, 1963. Then and then only the judge ordered issue of writ of summons under the method known as substituted service, by virtue of order 5, rule 20 of the Code : vide order No. 5 dated June 19, 1963, and that too on the foot of an affidavit filed by the suing party, namely, the plaintiff.

(7) THE conclusion, therefore, seems to be ineluctable, in the language of order 5, rule 20, sub-rule 1, that the defendant has been keeping out of the way for the purpose of avoiding service and that the trial judge is satisfied that this has been so. Will then the defendant be allowed to take advantage of his own wrong, the wrong being that he has been doing all he can to flee a lawful process of the Court

(8) ANOTHER matter while on this point appears to be deserving of notice. Only because the trial judge ordered substituted service after having been satisfied upon the materials he had had put before him that the defendant had been deliberately making an attempt to run away from service of a courts writ of summons, that does not mean that the defendant is precluded from satisfying the Court, when he appears in Court, that that has not been the true state of affairs, and that, in fact, no writ of summons was ever served upon him. Reference may be made in this connexion to a Full Bench decision of the andhra Pradesh High Court: (1)Shanmukhi v. Venkataram Reddi, A. I. R. (1957) Andhra Pradesh 1. Examining the record, however, I do not find that any attempt to that end was made. So, it may be said, at the risk of repetition, that it is not open to the petitioner before me qua defendant to take advantage of his own wrong.

(9) THE second way in which the matter may be examined now deserves to be taken into reckoning. Order 5, rule 20, subrule 2, makes it abundantly clear that service of a writ of summons under the method known as substituted service shall be deemed to be as effectual as if such service has been made on the defendant personally. Mr. Banerjee is good enough to invite my attention to the explanation to article 123 of the new Limitation Act 36 of 1963, the explanation reading : "for the purpose of this article, substituted service under rule 20 of order 5 of the Code of Civil procedure shall not be deemed to be due service". So, one legal fiction is replaced by another. The earlier legal fiction as provided for in order 5, rule 2, subrule 2, cannot receive effect for the purpose of article 123 to the new limitation Act. On that, Mr. Banerjee and I completely agree.

(10) THAT, however, is not the question before me. The question before me is : is there anything on which I can prevent the running of this legal fiction for the purpose of section 17 of the Premises Tenancy Act Obviously, as Mr. Banerjee fairly concedes, there is nothing like the explanation to article 123, just now referred to, anywhere in the Premises Tenancy Act. Therefore, I must regard substituted service of the writ of summons to be as effectual as personal service upon the defendant himself. That, indeed, is the command of the statute : treat as real what is not real, what is. imaginary. Personal service in the case on hand does not simply exist and it is really imaginary. Even then, I have to go by the command of the statute. Can I stop midway and say : yes ; this command is real only for the purpose of founding an ex parte decree, as mr. Banerjee cantends, but not at all real for the purpose of deposit or payment of rent by the defendant as tenant within the meaning of section 17, sub-section 1, of the Premises Tenancy Act. I am afraid I cannot. Because if I stop my imagination running so, I do not obey the command of the statute, the command being : run on with the imagination to the farthest end. In support of the proposition I am going by, I shall cite only two authorities. And very high authorities they are. One is the case of (2) the State of bombay v. Pandurang Vinayak, A. I. R. (1953) S. C. 244, where Mahajan, C. J. (then Mahajan, J.) speaking for himself and Bhagawati, J. lays down the law on a matter as this in the manner following : "when a statute enacts that something shall be deemed to have been done, which, in fact and truth, was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. "

(11) THE logical conclusion here necessarily means that such method of service is too good a service even within the meaning of section 17, sub-section 1, of the Premises Tenancy Act.

(12) THE other authority quoted in this very Supreme Court decision is (3) East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) A. C. 109 where Lord Asquith lays down the law as under : "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prevented from doing so, also imagine as real the cansequences and incidents which, if the putative state of affairs had, in fact, existed, must reasonably have flowed from or accompanied it * * *. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to inevitable corollaries of that state of affairs. "

(13) IN the case on hand, one of the inevitable corollaries is that there has been due service of summons, as good as personal service, even within the meaning of section 17, subsection 1, of the Premises Tenancy Act.

(14) THUS the only contention on which this revisional petition has been opened before me fails.

(15) IN the result, the rule do stand discharged with costs, hearing fee being assessed at three gold mohurs.

(16) LET the records be sent down to the courts below with the utmost expedition.