CPC Order 5 Rule 20 – Submission that under Order V Rule 20 (Substituted service), it was not necessary to affix a copy of the summons at the court house and at the house where the defendant is known to have last resided, once the court had directed service by publication in the newspaper really begs the question - There was a clear breach of the procedure prescribed in Order V Rule 17 (Procedure when defendant refuses to accept service, or cannot be found.) even antecedent thereto.            

*SUPREME COURT*

(2018-4)192  *PUNJAB LAW REPORTER* 71

 


  1. Civil Procedure Code, 1908 (V of 1908) Order  5, Rule  5, 9, 21 - Rule 5 clearly lays down that when the report is made by the postal employee that defendant refused to take delivery of the postal articles or had refused to accepts summons, the Court issuing the summons shall declare that the summons have been duly served on the defendant - Service through letter is a valid service. (180) P.L.R.
  2. Civil Procedure Code, 1908 (V of 1908) Order  5, Rule 17 - It is revealed that the process server has not mentioned in the report that he had effected the service of summons upon the petitioner who is alleged to have refused to receive the same, neither he had affixed the summons on the outer wall of the house - Evidence of the Process Server, in my view, leaves no manner of doubt, that service of summons was not effected upon petitioner - Even the procedure as prescribed under Order 5 Rule 17, has not been followed.  (180) P.L.R.
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  4. Civil Procedure Code, 1908 (V of 1908) Order  5, Rule 17 - Service of summons - Receipt of summons refused - Procedure as established by the law not followed - Counsel for the respondent has not been able to show any law of presumption as to proof of service of summons on a person who had prior knowledge of the pendency of the divorce petition in a police station - Even then she needed to be served with the summons to appear in Court - Exparte decree of divorce - Set aside. (175) P.L.R.
  5. Civil Procedure Code, 1908 (V of 1908) Order  5, Rule 17 - Serving officer subject to the conditions prescribed in Rule 17 being satisfied is required to 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 carry on business or personally works for gain - It is incumbent upon the serving officer to make a report with his signatures as to the circumstances under which he affixed the copy of summons, name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed - In the present case, the report made by the serving officer appears to be attested by one SC but the address of said SC does not appear to be mentioned while giving particulars of said SC - Though the report made by the serving officer is not clearly legible but it appears that the said report was made by the concerned officer at the instance of the respondent (petitioner therein) on dasti process issued by the Court with an intent to help the respondent (husband) to get an order of ex-parte affixed -  Substituted Service - No proper summons were issued in the present case for service of the appellant and thus the question of any due service on the basis of publication in the newspaper does not arise, J.) .   (182) P.L.R.
  6. Civil Procedure Code, 1908 (V of 1908) Order  5, Rule 20, 17 - No affixation was made at the last known address under Order 5 Rule 17 CPC which provides that in case the defendant cannot be found, the serving officer will affix a copy of summons on the outer gate of some conspicuous part of the house in which the defendant ordinarily resides - Under Order 5 Rule 20 CPC also, the Court had to be satisfied that there was a reason to believe that the defendant was keeping out of the way for the purpose of avoiding service - The summons were also to be served by affixing a copy thereof in some conspicuous part of the court house and also upon the conspicuous part of the house on which the defendant was known to have last residing - It is only thereafter, publication was meant to be ordered under Order 5 Rule 20(1)(a) CPC - Summons were not even sent to the Court at Patiala to effect service under the provisions of Order 5 Rule 21 CPC as amended by this Court whereby, it is provided that the Court having jurisdiction would deliver the summons by its officers or one of his subordinates - Ex-parte proceedings - Set aside. (179) P.L.R.
  7. Civil Procedure Code, 1908 (V of 1908) Order  5, Rule 20, Order 9, Rule 13 - Satisfaction as required by Order 5 Rule 20 CPC i.e. to the effect that the said defendants were getting out of the way for the purpose of avoiding service or that for any other reason, the summons could not be served in the ordinary way - Thus the aforesaid order of the trial Court ordering substituted  service is completely illegal and invalid - There was sufficient ground for setting aside the exparte judgment and  decree.   (173) P.L.R.
  8. Civil Procedure Code, 1908 (V of 1908) Order  5, Rule 20 - Arbitrator ought not to have resorted to the provisions as envisaged under Order 5 Rule 20 of Code of Civil Procedure - Had resorted to the procedure of sending the notice by registered post and in response to the notice - A request was made to drop the proceedings - But on receiving the notice of the arbitration proceedings, the appellants could have engaged services of lawyer or participated in the arbitration proceedings on their own in defending the alleged claim of respondents - Objections dismissed - Arbitration and Conciliation Act, 1996 (26 of 1996) S. 3. (180) P.L.R.
  9. Civil Procedure Code, 1908 (V of 1908) Order  5, Rule 20 - If there is failure on the part of the plaintiff to serve the defendant in the normal way, only then can question of substituted service arise - Service through publication has itself caused miscarriage of justice since admittedly the defendant was in jail when the publication was effected and he may not have any access to news papers in jail. (174) P.L.R.
  10. Civil Procedure Code, 1908 (V of 1908) Order  5, Rule 20 - Process server has recorded in his report that he had seen him and he concealed himself in his house, meaning thereby he refused to take the summons or evaded service - The said report is duly witnessed - Court had found that the defendant cannot be served in ordinary process and ordered the summons to be affixed on the outer door or some conspicuous part of his ordinary residence and that he be served through munadi - Exparte decree - Upheld. (178) P.L.R. 
  11. Civil Procedure Code, 1908 (V of 1908) Order  5, Rule 20 - Publication is an acknowledged mode of service and once effected, the litigant can not turn around to say that merely because all the initial modes of regular service such as affixation and munadi were not exhausted, this would render the publication issued under Order 5 Rule 20 CPC as meaningless. (176) P.L.R.