Whether it is mandatory to affix summons to outer door of defendant's house if he refuses sign on acknowledgment?

When the Bailiff had not affixed copy of summons to the outdoor of the house of defendant after the alleged refusal by him to sign the acknowledgment, then such casual verification by the officer of the Court has no meaning at all. Both the Courts below have erred in holding that the defendant was duly served with summons. In fact, Sushil Kumar's (supra) decision was cited before the learned First Appellate Court, but it was not relied on the ground that in this case defendant had accepted the copies of the summons, but refused to sign the acknowledgment. It appears that learned First Appellate Court failed to consider the wordings of Rule 16 and 17 of O. 5 of the Code. Rule 16 imposes a duty on the process server to obtain signature of the person on whom the summons is being served on the copy of the summons with him. Rule 17 deals with procedure when such person refuses to accept service, etc. It contemplates the situation that defendant has refused to sign the acknowledgement, there is no further bifurcation about refusal before or after acceptance of summons. Therefore, even in case of acceptance of copies of summons, but refusal to sign the acknowledgment by the defendant, the process server was bound to affix a copy of the summons on the outer door of the house of the defendant. There was no proper service of summons in this case. Both the Courts have wrongly accepted the said service as proper service.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 0604 of 2016

Decided On: 05.08.2019

Madan Mohan Gupta Vs.  Ramavati Ramesh Chauvan

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2020(1) MHLJ 951

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Whether exparte decree can be set aside if summons was pasted without obtaining signature of witnesses?

More so, it is also clear from the report of Process Server that on the date concerned petitioner was not at home and the notice was made 'chaspa' on the wall of house of the petitioner which do not carry any signature of the witnesses, thus, suffers from infirmity in the procedure as laid down in Order 9 Rule 7 CPC and also the precedent law laid down by this Court in Rameshwar Chaudhary (supra).

8. In light of aforesaid submission, the writ petition is allowed. The impugned order dated 02.11.2018 (Annex. 6) passed by learned ADJ No. 2, Nagaur in Case No. 4/2015 (Civil Case No. 6/2015) is quashed and set aside. The application of the petitioner filed under Order 9 Rule 7 CPC is allowed.

IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 1977/2019

Decided On: 22.05.2019

 Gram Panchayat Bhakrod Vs.  Sriramratan Construction and Ors.

Hon'ble Judges/Coram:

Pushpendra Singh Bhati, J.

Citation: AIR 2019(NOC) 663 Raj

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