Service of Summons of the Court, or service of any other
Notice or legal document postulate elementary principles of natural justice,
i.e., a Person is thereby put to Notice, that if he neglects to take due steps
upon receipt of the Summons / Notice, prejudicial legal action or Orders of the
Court may be passed against him.
Service of Summons is the first step after the institution
of the Suit. After the institution of the Suit, the Plaintiff is immediately require
to tender draft Summons before the concerned dept of the Court, wherein the
said office cause to affix the Seal of the Court, put up the future date on
which the Defendant is called upon to appear and answer the claim of the
Plaintiffs; and also cause it to be signed by the concerned Judge or any other
officer of the Court empowered in this behalf; and cause it to be returned to
the Plaintiffs, for it to be served upon the Defendants, either by Regd post /
Speed post, or through Serving officer of the Court / Bailiff. The Summons must
be tendered within 30 days from the date of institution of the Suit, and must
be served at least 14 days prior to returnable date mentioned in the Summons.
[Section 27, O.5 R.10]
Personal Service of Summons through
Officer of the Court: The
thumb rule is that, wherever it is practicable, service
should 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 [O.5
R.12]. As per O.3 R.2 of CPC, 1908, Agent includes the power of Attorney
holders, and any other person carrying on trade or business for and in the name
of the Defendant.
Service upon family Member of the
Defendant: Where the
Defendant is not available at the time of effecting Service, the Service may be
effected upon any adult family Member of the Defendant, who is residing with
him. A service upon servant is not recognized in law as service upon family
member of the Defendant. [O.5 R.15]
In cases where
Service is duly effected, the Serving officer should prepare a Report stating
the time when and the manner in which the summons was served, and the name and
address of the person who identified the person served and witnessed the
delivery of the summons [O.5 R.18]. The Defendant or Agent or any other person
receiving Summons are obliged to put their signature and acknowledgement of
receipt, endorsed on the original Summons. [O.5 R.16]
Mode of Service by Pasting of copy of
Summons on outdoor / any conspicuous part of the House / Residence / work
place, of the Defendant: In any of the
circumstances enumerated hereinafter, the Service of Summons may be effected by
Pasting copy of Summons on outdoor / any conspicuous part of the House /
Residence / work place, of the Defendant. The circumstances are (i) where the
defendant or his agent or his adult family member refuses to accept the Summons
or sign the acknowledgment, or (ii) where the Defendant is absent from his
residence at the time when service is sought to be effected on him at his residence,
and there is no agent or any other adult family member of the Defendant is
available for service, and the serving officer after making due efforts and /
or inquiries, to find out the availability or whereabouts of the Defendant, satisfies
himself that there is no likelihood of Defendant being found at the residence
within a reasonable time. The Serving officer then may proceed to serve the
Summons in the manner aforesaid, and then shall return the original Summons to
the Court, with a report 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. [O.5 R.17]. The anxiety of the Court in strict adherence to this
manner of service is reflected in the observations made by Hon’ble Bombay High
Court in a case before it, reported in AIR Bom HCR 2015 (4) 4 132: 2015 (4)
MhLJ 378.
In aforesaid cases of
Service, the Court may examine the Serving officer, even if its report is
verified by an affidavit; and the Court must examine the Serving officer, if
its report is not verified by an affidavit; and the Court 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. [O.5 R.19]
Mode of Service by Regd Post / Speed
Post: The Service of Summons may in the
alternative be effected by Regd Post / Speed Post, in both cases where
Defendant resides / carries on business within the jurisdiction of the Court
issuing Summons, or outside jurisdiction of the Court issuing Summons; or by a
Courier service / Email / Fax, if it is permitted under the Rules. [O.5 R.9]. When
the Summons was properly addressed, pre-paid and duly sent by Regd post / Speed
post, acknowledgment due, the Courts may regard deemed Service of Summons, even
if the A/d card is lost or mislaid or is not received by Court; or (b) When
Postal article is returned back with the endorsement “Refused ” or alike
endorsement [O.5 R.9(5)].
In Suits relating to
Immovable property, where Service cannot be effected upon Defendant, the
Service may be effected upon a person who is in-charge of the concerned
Immovable property. [O.5 R.14]
Substituted Service: In cases where (a) 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 (b) that for any other reason the summons cannot be
served in the ordinary way, the Court may allow the Service of Summons by way
of (a) Affixing copy of Summons in Court
House; and (b) Affixing copy of Summons over the outdoor / conspicuous part of
the house / place of business of the Defendant; or (c) Advertisement in the
local 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; (d) In any other manner. (O.5 R.20).
Additional Service by Plaintiff: The Court, on an
Application by the Plaintiffs, may in addition to Service of Summons as
aforesaid, allow Plaintiffs to cause personal service of Summons upon
Defendants; and the Service by Plaintiff upon Defendants is considered in law
as Service by Serving officer of the Court. [Rule 9A(3)]
In Suits against any Public
/ Private Limited Company, the Service may be effected on the secretary
or on any director, or other principal officer of the Company; or by leaving it
or sending it by post addressed to the Company at the registered office, or if
there is no registered office then at the place where the Company carries on
business. [O.29 R.2]. In Suits against Partnership Firms, the Service may be
effected on any one or more of the Partner, or by sending at the principal
place at which the partnership business is carried on within India upon any
person having, at the time of service, the control or management of the
partnership business.
Section 27 of the General Clauses Act, 1897 and Section 114,
illustration (f) of the Evidence Act, 1872, play significant role in
presumption of due Service of postal articles sent by Regd post / Speed post /
UCP. In this backdrop, instructive observations of the Hon’ble Apex Court
deserves mention here, wherein it says, “"Section 27 gives rise to a
presumption that service of notice has been effected when it is sent to the
correct address by registered post......... unless and until the contrary is
proved by the addressee, service of notice is deemed to have been effected at
the time at which the letter would have been delivered in the ordinary course
of business.” [AIR 2010 SC 3817]. Another instructive observations came in the
case of [AIR 2017 SC 1681], wherein the Hon’ble Court observed to say
that “This Court in catena of cases has held that when a notice is sent by
registered post and is returned with postal endorsement "refused" or
"not available in the house" or "house locked" or
"shop closed" or "addressee not in station", due service
has to be presumed. Other important rulings include AIR 2011 SC 1150; (2008) 1 Mah LJ 44; AIR 2015 SC 1252.
The Hon’ble Jharkhand High Court in a case before it,
extensively dealt with the issue as to whether the presumption of law u/s 27 of
the General Clauses Act, is also available to Notices sent by Speed post. The
Hon’ble Court answered in the affirmative. 2013 (357) ITR 619; 2001 (4)
RCR(Cri) 34.
In keeping pace with technological advancement,
the Bombay High Court and the Delhi High Court, in cases before them, have
accepted the Service of Notice / Summons through whats app. Please see cases
Kross Television V. Vikhyat Chitra (BHC 2017); SBI Cards V Rohidas Jadhav (BHC
2018); Tata Sons Limited V. John Doe (DHC 2017).
Sandeep Jalan
Advocate
Law
Referencer: https://www.litigationplatform.com/
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