Whether exparte decree can be set aside if summon was served to wife by paper publication?

Article 123 of the Schedule to the Limitation Act, 1963 relates to applications filed to set aside a decree passed ex-parte, or to re-hear an appeal decreed or heard ex-parte. While the limitation prescribed in such cases is 30 days, the period of limitation is required to be computed from the date of the decree, or where the summons or notice was not duly served, from when the applicant had knowledge of the decree. As noted hereinabove, the notices sent to the appellant's address were returned unserved. Sri. S.K. Jain, learned Senior Counsel appearing on behalf of the appellant, would submit that the respondent had deliberately sent the notice to the wrong address in order to ensure that the appellant remained unaware of the suit, for divorce, having been filed. We are satisfied that, in the present case, service of notice through paper publication would not constitute due service in terms of Article 123 of the Limitation Act, as the appellant is a house wife without any independent source of livelihood, and is a daughter of petty vegetable vendor living in an interior part of the State of West Bengal. The court below should, therefore, have condoned the delay in filing the application under Order 9 Rule 13 CPC.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No. 502 of 2017

Decided On: 15.11.2018

 Paromita Mondal Vs.  Tarun Kumar Mondal

Hon'ble Judges/Coram:

Ramesh Ranganathan, C.J. and Alok Singh, J.

Citation: AIR 2019 UTTAR 37

Print Page

Whether Service Of Summons Without Mentioning Specific Day, Date, Year And Time Can Be Held As ‘Summons Duly Served?

The material infirmity in the summons was
that it did not mention any specific day, date, year
and time for the defendants’ appearance in the
Court. This being the requirement of Section 27
read with Order V Rule 20(3) and Process-IA of
Appendix-B, it was mandatory for the Court to
mention the specific working day, date, year and
time in the columns meant for such filling. It would
have enabled the defendants to appear before the
Court on the date so fixed therein. It is a settled
rule of interpretation that when the legislature
provides a particular thing to be done in a
particular manner then such thing has to be done
in the same prescribed manner and in no other
manner.
31) What was, however, mentioned in the
summons in question was that the defendants
should appear before the Registrar of the Court
within 15 days from the service of publication of
this summons on them exclusive of the day of such
service of the summons and are summoned to
appear before this Court in person or through
advocate to answer the plaintiff's claim on the day
the case is set down for hearing upon which date
you(defendants) must be prepared to produce all
your witness and all your documents in your
possession or power upon which you intend to rely
in support of your case. The summons then also
mentioned that you (defendants) are hereby
required to take notice that in default of your
causing an appearance to be so entered, the suit
will be liable to be heard and determined in your
absence.
32) The aforesaid wording in the summons insofar
as it pertains to giving 15 days’ time without
mentioning a specific day, date, year and time is not
in conformity with the requirements of Section 27
read with Appendix B.
33) In the light of the foregoing discussions,
service of summons on the defendants without
mentioning therein a specific day, date, year and
time cannot be held as “summons duly served” on
the defendants within the meaning of Order IX Rule
13 of the Code. In other words, such summons and
the service effected pursuant thereto cannot be held
to be in conformity with Section 27 read with the
statutory format prescribed in Appendix B Process (I
and IA) and Order 5 Rule 20(3) of the Code.
34) It is for this reason, we are of the considered
opinion that the appellant (defendant No.1) was able
to make out a ground contemplated under Order IX
Rule 13 of the Code for setting aside the ex parte
decree.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2113 OF 2018
(Arising out of S.L.P.(C) No. 14648 of 2017)

Auto Cars  Vs Trimurti Cargo Movers Pvt.Ltd. & Ors. 

Dated:February 15, 2018

Abhay Manohar Sapre, J.
Citation:AIR 2018 SC 1165,(2018) 15 SCC166

Print Page

When service of summons by paper publication is not permissible?

Upon hearing the learned advocates for the parties and on perusal of the records, it is seen that in terms of Order IX , Rule 13 C.P.C. the Court is empowered to set aside the ex parte decree in case it satisfies itself that the summons was not duly served upon the defendants in the suit as well as when the defendant was prevented by any sufficient cause from appearing before the Court when the suit was called out for hearing. The impugned order ex-fade discloses that on the basis of the materials on record, the trial Court has arrived at a clear finding that the petitioners had not filed any application asking for service of summons by registered A/D post. The trial Court has also arrived at the finding that the petitioners did not ask for service of summons by affixation on the outer door of the residential premises of the respondent. As rightly submitted by the advocate for the respondents, the Order VI, Rule 14-A(1) to (4) as provided by the Bombay High Court clearly provides thus:-

"14-A - Address for service of notice:-

(1) Every pleading when filed by a party shall be accompanied by a statement in the prescribed form, signed as provided in Rule 14, regarding the address of the party. Parties subsequently added shall immediately on being so added file a memorandum in writing of this nature.

(2) Such address may, from time to time, be changed by lodging in Court a form duly filled up and stating the new address of the party and accompanied by a verified petition. Notice of such change shall be given to such other parties as the Court may deem it necessary and the form showing the change may be served either on the pleaders or such parties or be sent to them by registered post pre-paid for acknowledgement as the Court thinks fit.

(3) The address furnished in the statement made under sub-rule (1) shall be called the "registered address" of the party, and shall until duly changed as aforesaid, be deemed to be the address of the party for the purpose of service of all processes in the suit or in any appeal from any decree or order therein made and for the purpose of execution, and shall hold good, subject as aforesaid, for a period of six years after the final determination of the cause of matter.

(4) (i) Where a party is not found at the registered address and no agent or adult male member of his family, on whom a notice or process can be served is present, a copy of the notice or process shall be affixed to the outer door of the house. If on the date fixed such party is not present, another date shall be fixed and a copy of the notice, summons or other process shall be sent to the registered address of that party by registered post pre-paid for acknowledgement (which pre-payment shall be made within one month from the date originally fixed for hearing) and such service shall be deemed to be as effectual as if the notice or process had been personally served.

(ii) Where a party engages a pleader, notice or process issued against the party shall be served in the manner prescribed by Order III, Rule 5, unless the Court directs service at the registered address of the party".

It is thus clear that in terms of the said Rule it is absolutely necessary for the plaintiff to take necessary steps to serve the defendant by registered post when he cannot be served through a bailiff of the Court and in addition he has to see that the copy of the summons is affixed on the outer door of the residential premises of the defendant when a person to whom the summons is addressed is not found at the premises of the registered address. The trial Court on going through the records has arrived at the finding, as already noted above, that the petitioners herein had neither taken steps for affixation of summons on the residential premises of the respondents nor for service of summons on the respondent by registered post. Indeed the fact that there was no attempt made by the petitioners either to serve the summons by registered post or to take steps for affixation of copy of the summons on the outer door of the residential premises of the respondents is not disputed. In this set of facts I do not find any case made out for interference in the impugned order wherein the trial Court in exercise of its discretion, which has been judiciously exercised, has held that the summons in the main suit was not duly served on the respondents.

As regards the last submission of the learned advocate for the petitioners that the substituted service under Order V, Rule 20 was sufficient compliance of the provisions regarding service of summons also cannot be accepted in view of clear provisions in that regard in Rule 14-A of Order VI of C.RC. The said rule clearly provides that the plaintiff shall endeavour to serve the defendants by registered post or by affixation or summons on the residential premises of the defendants when the normal service of summons by the bailiff to the person to whom the summons is directed cannot be made due to the absence of such person. Undisputedly in the instant case no such efforts were made by the petitioners and as such the service by publication under Order 5, Rule 20 cannot be a valid service.

Bombay High Court

Shri Shantaram Fatu Prabhu Desai & ... vs Smt. Harsha Umesh Sardessai & ... on 17 February, 1998

Equivalent citations: 1998 (3) BomCR 730, 1998 (3) MhLj 631

Bench: R Khandeparkar

Print Page

Supreme Court: Precaution to be taken by court while granting application for substituted service

The learned Single Judge has found that respondent being an illiterate lady living in a different town could not have known through the newspaper that her husband had filed a divorce petition against her and, therefore, she had no knowledge about the divorce petition. Consequently, the ex parte decree could be treated as one passed against the party which was not served and which had no knowledge about the said proceedings. The learned Counsel for the respondent was also justified in submitting that the Trial Court could not have almost automatically granted the application for substituted service without taking steps for serving the respondent by ordinary procedure as laid down by Order V Rules 12, 15 and 17 C.P.C. It must be kept in view that substituted service has to be resorted as the last resort when the defendant cannot be served in the ordinary way and 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 that for any other reason the summons cannot be served in the ordinary way. In the present case, it appears that almost automatically the procedure of substituted service was resorted to.

 Citation : AIR 1997 SC 35

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9852 of 1996.

Decided On: 08.10.1996

Smt. Yallawwa   Vs. Smt. Shantavva

Hon'ble Judges/Coram:

N.P. Singh and S.B. Majmudar, JJ.

Citation: AIR 1997 SC 35.

Print Page