By Y.Srinivasa Rao, Civil Judge (Sr.Div.),
A summons is a legal document that is issued by a Court on a person involved in a legal proceeding. When a legal action is taken against a person or when any person is required to appear in the court as a witness in a court proceedings, to call upon such person and ensure his presence on the given date of the proceedings, summons is served. If the summons is not duly served then no action can be taken against the defendant. If defendant fails to attend court after receiving summons, he will be ex-parte by the Court. Section 27 and Order V of the Code of Civil Procedure, 1908 (In short ‘CPC’) deal with ‘Service of Summons’ on the defendant/Respondent. Order 16 deals with summoning and attendance of witnesses. Sections 61 to 69 of Cr.P.C deals with service of summons on accused and witness. This article is only confined to service of summons in a Civil Proceedings. Order V of CPC contains Rules 1 to 30. These provisions deal with issue and service of summons. Under the Code of Civil Procedure, 1908, there are different modes of effecting service of summons on defendant. It is needless to say that non-service of summons and notices in a civil suit proceedings is a great hurdle for speedy disposal of a civil suit. There are several reasons for non-service of summons to defendant in time. Furnishing correct address of the defendant in the plaint would be helpful to avoid delay in service of summons. Recently, the Courts have expanded the scope of service of summons through information technology. We often across with the situations that in many civil cases, defendant takes plea that summons was not duly served on him. Similarly, in general, court often use the method of substitute of service of summons by way of paper publication.
Order V, Rule 19-A was inserted in Order 5 w.e.f. 1-2-1977 by Amendment Act No. 104 of 1976. In order to avoid delay in actual service, the service of summons, through registered acknowledgement due post was inserted. Sub-rule (2) of Rule 19-A is analoguous to Section 27 of the General Clauses Act, 1897. The proof that a letter has been posted is usually evidence of its delivery under section 16 of the Evidence Act.
In most of the cases, we come across the situations where the defendant argues that the newspaper in which his name was published in widely circulated newspaper and therefore he could not see it. We know the difficult to cause service of summons to defendant when he resides in abroad. If a spouse gets divorce without valid service of notice in a divorce case, the mental agony of the other spouse cannot be explained in terms and so also the agony of defendant in a money suit, when the plaintiff obtains exparte decree without valid service of notice. I, therefore, opine that it is very essential to know the procedure as to valid service of summons/notice. There are many other situations we come across in regular course of time as to effective service of summons in civil cases. I made a small attempt to furnish some valuable rulings in this article on this topic of ‘service of summons’ and that I hope that this article may be helpful to lawyers and judicial officers while dealing with service of summons in a civil suit. I quoted several citations in this article on different facets of service of summons.
It is the fundamental principle from the latin maxim actus curiae neminem gravabit that act of court shall prejudice no man unless sanctioned by law. But, it is well-settled law that even in ex parte cases, Court has to pass a reasoned order by discussing the pleadings and evidence of the party. In our Court proceedings, we regularly see exparte decrees. Before ordering substitute service of summons or notice, the Court must satisfy the requirements as per law. If any decree is obtained by fraud, such decree would be null and void. Though substituted service is a sufficient service in ordinary circumstances, Courts shall be careful to see that conditions enumerated in Order 5 Rule 20(1), CPC have been strictly complied with before ordering substituted service. As to this point in our Hon’ble Division Bench in Maganti Krishna Durga Vs. Maganti Anil Kumar – 2015 (5) ALT 346 (D.B.), it was observed that Where the husband obtains a decree of divorce ex parte by practising fraud, husband cannot take advantage of Section 15 of Hindu Marriage Act and remarry. Similarly, ex parte decree against defendant has to be set aside, if he satisfies Court that summons had not been duly served or he was prevented by sufficient cause from appearing before Court when suit was called on for hearing However, Court shall not set aside said ex parte decree on mere irregularity in service of summons or in a case where defendant had notice of date of hearing and sufficient time to appear in Court Not permissible for Court to allow said application in utter disregard of terms and conditions incorporated in second proviso to Rule 13 of Order IX CPC. Before setting aside an exparte decree, it is important to note the limitation factor to set aside ex parte decree. A distinction be maintained in regard to computation of period of limitation between cases where summons was served on defendant and appearance entered in suit and set ex parte and cases where summons was not served at all and defendant was not aware of the ex parte decree. This issue was succinctly answered in K. Surekha Reddy v. V. Chandraiah – 2011 (2) ALT 468.
Address for Service:- In Andhra Pradesh, Rule 2 (a) of Civil Rules of Practice and Circular Orders, 1990 defines ‘Address for Service’. Rule 7 of CRP deals with Service of notice. Under 11 [8 (2) & (New) of CRP, Every pleadings shall contain the address for Service. The address for service shall contain particulars such as the Municipal or Panchayat number of the house, name of the street and locality.
Procedure for service of Summons/notice: – It was provided in Rule 7 of CRP. Under this rule, except where otherwise provided by the Code, or these Rules, or any law for the time being in force, any notice, directed to be given to any party shall be in writing and may be served by the party or his Advocate on the other party, or his Advocate personally, or be sending the same by post in a registered post cover “ACKNOWLEDGEMENT DUE, OR BY SPEED POST OR BY AN APPROVED COURIER SERVICE OR BY FAX MASSAGE OR BY ELECTRONIC MALE SERVICE OR BY SUCH MEANS” to the address for service of the party or his Advocate. Under Rule 7 (3), the District Judge shall prepare a panel of courier services for the Courts situated at the District Head Quarters for sending summons, notices and other process by such courier service. Under Order 7 and Order 6 CPC, it is the duty of the plaintiff to furnish in the full cause title and separate and independent addresses which are known as registered address for service of all the defendants.
Need of making rules and regulations for service of summons and notices through electronic means:- In this computer era, usage of mobiles and computers has been increasing day by day. So many Apps are being introduced day by day and social media is now become more powerful tool even for common people. Within fraction of seconds, messages are being communicated among the people because of recent computer technology. Sending messages by E-mail, Whatsapp, Telegram, Slack etc., became easy task to all age groups. The concept of E-courts has been praying vital role in judiciary and is making efforts for computerization of all courts in India. Now, the Hon’ble Supreme Court expanded the scope of electronic media in judiciary. But, information technology and notices is not being properly used by all the courts in service of summons because the court system does not have the facility to effect the service through electronic mode. Provisions under Part X of the Code of Civil Procedure, 1908 (5 of 1908) and Order V, Rule 9 of the Code of Civil Procedure, 1908 enables the High Court to make rule and regulations in this regard. The Delhi High Court has also made rules regarding the service of legal notices through email by the virtue of above legal provisions and other provisions which enables it in this regard.
Summons/Notices through E-mail:- The Hon’ble Supreme Court of India, in Central Electricity Regulatory Commission Vs. National Hydroelectric Power Corporation Ltd., (2010) 10 SCC 280], permitted the service of Notice by email along with the ordinary mode of serving notice. In Ksl and Industries Ltd., Vs Mannalal Khandelwal and the State of Maharashtra, (Criminal Writ Petition No. 1228 of 2004), The Hon’ble Mumbai High Court held that to avoid the delay in legal proceedings because of unserved summons must be interrupted by using all the practical methods and services including emails. Summons through e-mail is permitted in In Indian Bank Association & Ors vs Union Of India & Anr (2014) 5 SCC 590.
Summons though Whatsapp:- In Tata Sons Limited & Ors vs John Does, CS(COMM) 1601/2016, His Lordship Justice Rajiv Sahai Endlaw of the Hon’ble Delhi High Court permitted the right to serve summons to the defendant via Whatsapp texts as well as by emails to a defendant. In a recent case, Justice Surabhi Sharma Vats of the Delhi High Court allowed a woman to serve the summons to her estranged husband who was living in Australia via Whatsapp. Moreover, the court considered “double-tick” as valid delivery of summons. In another case, Bhim Rathke vs Mr. R.K. Sharma on 22 February 2018 Special Judge of Patiala House Courts, New Delhi dismissed the application of complainant who sought the usage of email and Whatsapp for serving summons. Rejecting the application, the Hon’ble Court pointed out that the court system does not have the facility to effect the service through electronic mode. Curiously enough, it is important to note that claiming the usage of Whatsapp or email is not a matter of right of the applicant rather it is the discretion of the court to grant permission for the same. Now-a-days, Computer technology is being advanced day by day, people can take the help of techno experts to escape any problem which involves technology. The problem is such that there are various hacked versions of Whatsapp, e-mail etc. in this computer era. I opine that it is better to use recent technology like Whatsapp in serving summons as a last resort which means that it may be used when all the other available means are exhausted. However, it cannot be claimed as a matter of right by the applicant because Indian laws explicitly do not allow it but at the same time, the interpretation of statutes lies with the court which allows judges to expand the law.
Service of Summons Abroad:-
International service of foreign judicial and extrajudicial documents is governed in general by the 1965 Hague Service Convention. Prior to the enactment of the Hague Service Convention, service of process in civil cases was generally effected by a letter rogatory, a formal request from the court in the country where proceedings were initiated or underway to a court in another country where the defendant resided.
In our country, Order V Rule 25 CPC deals with service where defendant resides out of India and has no agent. Order V Rule 26 provides the procedure to service in foreign territory through Political Agent or Court. Order V Rule 26-A provides that summons to be sent to officers of foreign countries. But, in reality, to serve a notice or summons, practically, in total, one would need to plan for about 4-5 months for effecting service of summons in a foreign country. In civil or commercial matters, some countries (like Canada, Australia) charge a fee for serving summons. Most of the parties to the litigation in India do not know the procedure how to contact Indian Embassy or Consulate to get details in this regard. India is a signatory to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial documents in Civil and Commercial Matters. The formal method for service in India with effect from August 1, 2007 is pursuant to the Hague Convention. According to this, Indian made certain declarations such as documents for service must be written in the English language; documents cannot be served via mail; documents must be served in India indirectly via proper authority; and documents under the Hague Convention cannot be served directly to the defendants in India by private judicial officer. See. the website of the Ministry of Law and Justice:lawmin.nic.in .
Procedure when defendant refused to accept service, or cannot be found:- Order V rules 17 and 19 of CPC is relevant to answer this question. “Where the defendant or his agent or such other person as aforesaid refused to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence within a reasonable time, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.” Rule 19 provides that where a summons is returned under r. 17, the court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit. See. Dr. K.C. Verma vs Asstt. Cit, (2004) 89 TTJ Del 129.
Presumptions as to service of summons:- Order 5, proviso to Sub-rule (2) of Rule 19A of C.P.C. provides that where the summons are properly addressed, prepaid and duly sent by registered post with acknowledgement due, notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons, the Court shall presume that notice is duly served. Further, Second 27 of the General Clauses Act, 1897 provides similar provision. The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading convincing and cogent evidence. See. Basant Singh and Anr. Vs. Roman Catholic Mission, AIR 2002 SC 3557. It is settled law that once the letter is sent through registered post at correct address and AD card is received back bearing some signatures, the presumption is drawn about its service upon the addressee unless the same is rebutted. It is held by Hon’ble High Court of Delhi in Smt. Bhavneshwari Devi Vs. Kalyan Singh, 1993 (2) RCR (Rent) 330 that presumption of service arises in law if the acknowledgement card of registered post is received back bearing signatures of someone. The Hon’ble Supreme Court has gone even a step further and held that even if the acknowledgement card is lost or does not come back for any reason, the presumption of service could still be drawn.
In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India – 2005 (6) ALT(D.N.)(SC) 22.4 ( F.B. ). Y.K. SABHARWAL and D.M. DHARMADHIKARI and TARUN CHATTERJEE,jjj, the Hon’ble Full Bench observed that as per Amendment Act of 1999, defendant has to file written statement within thirty days from date of SERVICE OF SUMMONS on him Rigor of this provision was reduced by Amendment Act of 2002 enabling Court to extend time for filing written statementExtension can be maximum for 90 days Provision of Order VII! Rule 1 providing for upper limit of 90 days, held, is directory.
When the exact date of service of summons is not with the Court:- In Mirza Liyaquath Hussain v. G. Srinivas Goud – 2005 (5) ALT 211 , it was observed that Prescribed period of 90 days be computed from the date of service of suit summons and not from the date of knowledge of filing suit by defendant. Rejection to receive written statement on the ground that it was filed beyond 90 days from the date of receipt of notice in an interlocutory application filed under Order 38 Rule 5, CPC and his participation therein and from the date of issuance of suit summons is held to be erroneous. Date of service of suit summons is the date for computing 90 days period. Exact date of service of summons is not before Court. Even if first date of hearing is taken as starting point, written statement was filed within time. Petition filed seeking permission to file written statement is allowed.
Proof of service of summons in divorce O.P :- Service of summons in divorce o.p. on wife is proved by examining process server and marking copy of summons which bears the signature of wife. See. Bantu Lavanya v. Bantu Rajeshwer – 2009 (3) ALT 32.
Before permitting substituted service, Court must be satisfied:- As was held in Chandergupt Arora v. Smt.Shaheen Khan and others – 2009 (6) ALT 451, before permitting substituted service, Court must be satisfied that either the defendant is purposefully avoiding receipt of summons or having regard to facts of the case, it is not possible to serve notice – Substituted service cannot be permitted on the sole ground that premises of defendant were locked at a given point of time. See also. Yerakareddy Anathareddi v. Smt. Durba Lakshmi Bhavani – 2009 (6) ALT 113
Service of suit summons to adult member:- When adult female members of defendants refused to receive suit summons, a conclusion can be drawn that summons are served on defendants in view of Order 5 Rule 15, CPC.(Para 29)(2) Irregularity in service of summons – Even though suit summons would have been attempted to be served giving sufficient time to defendants to appear at the hearing, in view of second proviso to Order 9 Rule 13, CPC, the ex parte decree should not be set aside by Court on an assumed irregularity in service of summons if the defendants had notice of date of hearing and had sufficient time to appear and answer the plaintiff’s claim. See. N. Hanmanth Reddy Vs. Smt. Razia Begum and others – 2013 (5) ALT 417. M.S. RAMACHANDRA RAO,j
Service of summons under order 5 rules 1 and 20:- summons issued to the appellant were returned un-served – as per the nazarath and the endorsement of postal authorities, reason for non-service of summons is non-availability of the appellant when the summons were about to be served – despite the correct address given, no steps were taken by the plaintiff in the present suit to serve the appellant on correct address. (Paras 14 and 15). See. Gulnar Gulabi Vs. Tasneem Sulthana- 2017 (1) ALT 585. A.V. SESHA SAI,j.
Substituted service:- For ordering substituted service as per Order 5 Rule 20, CPC it must be shown that the respondent/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. See. Maganti Krishna Durga Vs. Maganti Anil Kumar – 2015 (5) ALT 346 (D.B.). B SIVA SANKARA RAO and R. SUBHASH REDDY,jj
Publication of notice in Newspaper:- When service of notice is intended by an advertisement in a newspaper, the Newspaper shall be a daily Newspaper circulating in the locality in which the respondent/defendant is last known to have actually and voluntarily resided or carried on business or personally worked for gain. See. Maganti Krishna Durga’s case.
Substitute service is not due service:- As per Explanation to Article 123 of Limitation Act, 1963, substitute service under Rule 20 of Order 5, CPC shall not be deemed to be a due service. It was held in See. Maganti Krishna Durga Vs. Maganti Anil Kumar – 2015 (5) ALT 346 (D.B.).
Publication made by plaintiff in a news paper other than the one ordered by Court:- In Basant Singh and another v. Roman Catholic Mission – 2003 (1) ALT(SC) 1, it was held that its publication made by plaintiff in a news paper other than the one ordered by Court. However, both the said papers are local dailies having wide circulation in the area. Such a publication in the circumstances of the case is a mere irregularity in service of summons. It would not invalidate the effect of substituted service.
Non-Service of summons:- It was held in Maganti Krishna Durga’s case that second proviso to Order 9 Rule 13, CPC makes it obligatory on the appellate court not to interfere with ex parte decree unless it meets the statutory requirements, showing non-service of summons or where there is sufficient cause for the wife not appearing before the Court.
Endorsement of process-server:- In Indu Bhushan Vs. Munnu Lal and another – 2008 (3) ALT(D.N.)(SC) 6.2 (D.B), the Hon’ble Supreme Court held that In the case, not one but several process servers have given notice relating to service and their endorsements were sufficient to show service of notice relating to appeal. In N. Muthaiah and others Vs. K. Lakshmamma – 1991 (1) ALT 641, it was held that acceptance of endorsement of process-server by Court is purely a finding of fact. The Court cannot go into the question whether such endorsement is correct or not.
Effective date of impleadment:- In the ordinary course, impleadment of party would be from date of order subject to exception in proviso to Section 21 of Limitation Act and further subject to service of summons. See. Ganapathi (Padala) Suryakumari v.Dr. Erra Ramadevi and another – 2007 (1) ALT 633.
Summary procedure:- In a suit under Order 37, CPC plaintiff shall take steps to serve summons for judgment even if defendant entered appearance more than 10 days after service of suit summons provided an ex parte decree was not passed by the date of such appearance. See. Syed Pasha Vs. G.B. Prahalad Rao – 2006 (1) ALT 200.
Cancellation of decree:- In a suit for cancellation of ex parte decree, plaintiff has to prove not only non-service of suit summons on him but also the falsity of suit claim. See. P. Ramalaxmi Vs. Peetala Tatayya and others – 2006 (1) ALT 79. A. GOPAL REDDY,j.
Service of summons in Rent Control cases:- In Bansilal Yadav v. Suraj Chand Bhagat and others – 2007 (2) ALT 491, it was observed that under rule 22 (4) of rent control rules, making affixure of summons on the last known place of abode or business without making efforts to tender service in person or to serve the same on adult member of their family or to send the same by registered post is not legal.(2) Order of injunction by Rent Controller. Where demised building is taken possession illegally and is demolished partly, such demolition would not determine the tenancy when the site of the building continues to exist and Rent Controller has power to order status quo of structures existing as on that date.(3) Right of tenant illegally evicted – Tenant who is illegally evicted can seek restoration of possession by filing an application under Section 8 (3) of Rent Control Rules.
Permission to defend suit:- In summary suits for recovery of money under Order 37, CPC, period of ten days to file application by defendant seeking permission to defend the suit be computed from the date of service of summons for judgment and not from the date of service of suit summons. See. Panduga Veera Reddy v. Bandaru Damodar Reddy and another – 2005 (3) ALT 417. L. NARASIMHA REDDY,j
Order 5 is applicable to Execution proceedings:- It is not in dispute that the procedure contemplated for service of notice under Order 5 is made applicable for service of notice in the execution proceedings also. Pappasani Narayana Reddy v. Mandem Reddappa Reddy, 2004 (5) ALT 226.
Process server not making repeated efforts to effect personal service on J.Dr.:- Rule 12 of Order 5 requires that wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient, thus the requirement of law is that effort must be made to serve summons personally on the defendant (judgment debtor). In this case, it was held that service of sale notice on J.Dr. by affixture is not a valid service under Order 21 Rule 66 (2) in the absence of process server not making repeated efforts to effect personal service on J.Dr. and in the absence of court ordering to follow the procedure contemplated under Order 5 Rule 20, CPC on a report of the process server. See. Pappasani Narayana Reddy v. Mandem Reddappa Reddy, 2004 (5) ALT 226.
Tenant has got right to get ex parte order of eviction set aside on the ground of non-service of summons on him as required under law. See. Mirza Rasheed All Safavi Vs. G. Bhaskar Rao – 1993 (2) ALT(NRC) 35. See also: A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 8(3).
Order 3, Rule 3:- D-2 and D-3 are power of attorney holders of D-1- service of summons on a recognized agent shall be as effective as on principal party – Hence service on D-1 is effective. See. Syed Naseeruddin Hasan and another Vs. Mir Ifteqar Ali and others – 1993 (1) ALT(SUPP) 680 (D.B.).
Postal return bearing endorsement of defendant’s refusal:- When there is a postal acknowledgment signed by the defendant that itself can be treated as sufficient service even if the summons by post is sent initially but the endorsement by a postal employee of refusal of the summons sent by registered post cannot be even prima facie proof of service except in a case where the summons so sent by registered post is after the return of the initial summons unserved. While acknowledge of service of postal notice could be made proof of service of summons under Rule 9(3) of Order V and the refusal of the postal notice only when in conformity with Rule 20-A, there is no provisions for declaring the summons as served when postal notice alone is taken out initially and it bears the endorsement of refusal. See. Narasamma Vs. Salamma – 1959 (1) ALT(NRC) 63.1.
Conclusion:- Strict compliance of the procedure under Order V of CPC is one remedies for proper service of summons. Order V, Rule 19-A CPC is introduced in order to avoid delay in actual service, the service of summons, through registered A.D. post was inserted. Sub-rule (2) of Rule 19-A is analoguous to Section 27 of the General Clauses Act, 1897. The proof that a letter has been posted is usually evidence of its delivery under section 16 of the Evidence Act. It is to be remembered that Order 37 Rules 2 and 3 CPC provided a procedure regarding the service of summons, that the plaint shall be accompanied along with the annexures. A Court before ordering substituted service must state the ground on which such service has become necessary and also must record court’s satisfaction about it. It is regular experience of lawyers and judicial officers that defendant, sometimes, does not file written statement in time. As was held in Mohammed Yusuf Vs. Faij Mohammad and others, 2009 (3) SCJ 517 (D.B.), defendants may be permitted to file written statement after expiry of period of 90 days only on exceptional situation. Sometimes, service of summons is linked with limitation aspect. As was held in Nivasan Vs. Peter Jebaraj and another, 2009 (1) ALT(D.N.)(SC) 22.2 (D.B.), Proceedings against defendant shall be deemed to have begun only from the date of service of summons subject to the provision of the Limitation Act. For some reasons, when respondent was not duly served with notice, by reaons substitute of service notice in paper publication or otherwise, the respondent would be set exparte. In case of dealing with setting exparte divorce decrees, it warrants slightly liberal approach. In N. Hemamalini v. N.A. Raghu – 2008 (1) ALT 458, it was observed that In cases relating to setting aside of ex-parte decree, the guiding principle would be to give opportunity to parties to seek adjudication of dispute on merits except where one of them has remained indifferent for a prolonged period of unexplained delay. Of course, it is always there that Court should not refuse to condone delay if it is satisfied about the explanation offered by party. Use of advanced technology, following the procedure established under law, is another important tool for speedy service of summons on defendant. Each jurisdiction has rules regarding the appropriate service of process.
I conclude the article with a suggestion that inasmuch as information technology is increasing day by day, it is time to enact the new legislation and to frame detailed rules for service of summons, notice, documents through electornic mode and that the training classes for the process servers must be organized to understand the law and that they also must electronically log their attempts to serve papers using some kind of GPS device, and keep those records in a database for at least ten years.