Summons Served Through Mobile Phone/ WhatsApp Valid Under BNSS: Bombay High Court Sets Aside Cost Imposed On Constable

From the impugned order, it reveals that

as the summons was served through the mobile

phone and therefore, the cost is imposed by the

Special Court. Admittedly, there is amended

provision in view of Section 70 of BNSS which deals

with proof of service in such cases when serving

officer not present. The sub-Section (3) specifically

states that all summons served through electronic

communication under sections 64 to 71 shall be

considered as duly served and a copy of such

electronic summons shall be attested and kept as a

proof of service of summons as well as Section 530 of

the BNSS also deals with the aspect of trial and

proceedings to be held in electronic mode which

reproduced as under:

All trials, inquires and proceedings under

this Sanhita, including issuance, service and

execution of summons and warrants, examination of

complainant and witness, recording of evidence in

inquiries and trials, all appellate proceedings or any

other proceedings, may be held in electronic mode,

by use of electronic communication or use of audiovideo

electronic means. {Para 6}

7. Thus, after going through this provision it

reveals that now the electronic mode is very well

accepted by the amendment in BNSS and the

purpose which is rightly considered by this Court in

the case of Kross Television India Pvt. Ltd., and

another referred supra wherein it specifically

mentioned that the purpose of service is put the

other party to notice and to give him a copy of the

papers. The mode is surely irrelevant.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CRIMINAL APPLICATION (APL) NO. 222 OF 2026

State of Maharashtra,  Vs. Satish s/o Sanjay Ramteke

CORAM : URMILA JOSHI-PHALKE, J.

DATED : 12/02/2026

Citation: 2026:BHC-NAG:2733

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Delhi HC: Suit service can not be said to be complete unless complete paper book of the suit is supplied to other side

In my opinion the service of the defendant no. 1 in the suit cannot be said to be complete unless complete paper book of the suit is supplied to the defendant no. 1. Surely it cannot be the position in law that even if the defendant has not been supplied with the paper book of the suit yet the period of 120 days will commence for filing of the written statement failing which the right to file written statement shall stand closed. {Para 4}

5. From the order dated 10.04.2007, as reproduced above, it is quite clear that the copy of the plaint and documents was supplied by counsel for the plaintiff to counsel for defendant no. 1 on 10.04.2017. Merely because such a prayer was not made earlier would not mean that defendant no. 1 would have received copy of the paper book prior to 10.04.2017. The period of 120 days will therefore necessarily commence only on 10.4.2017 and not earlier.

 In the High Court of Delhi at New Delhi

(Before Valmiki J. Mehta, J.)

Sunil Alagh  v. Shivraj Puri & Anr. 

CS(COMM) No. 1495/2016

Decided on December 14, 2017

Citation: 2017 SCC OnLine Del 12368.

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Bombay HC Guidelines for expeditious disposal of cheque dishonour case

The Honourable the Chief Justice has been pleased to issue the following practice directions : -

1. The magistrates having jurisdiction to try offences under the

Negotiable Instruments Act, 1881 (in short N.I. Act), shall record

cogent and sufficient reasons before converting a complaint

under section 138 of the N.I. Act from summary trial to summons

trial in exercise of power under the second proviso of section 143

of N.I.Act. Due care and caution shall be exercised in this regard

and the conversion of summary trial to summons trial shall not be

in a mechanical manner.

2. On receipt of any complaint under section 138 of N.I. Act,

wherever it is found that any accused is resident of the area

beyond the territorial jurisdiction of the magistrate concerned, an

inquiry shall be conducted by the magistrate to arrive at

sufficient grounds to proceed against the accused as prescribed

under section 202 of Cr.P.C.

3. While conducting any such inquiry under section 202 of Cr.P.C.,

the evidence of witnesses on behalf of the complainant shall be

permitted to be taken on affidavit. In suitable cases, the

magistrate may restrict the inquiry to examination of documents

without insisting for examination of witnesses for satisfaction as

to the sufficiency of grounds for proceeding under the said

provision.

4. Trial Court shall treat service of summons in one complaint

under section 138 of the N.I. Act forming part of a transaction, as

deemed service in respect of all complaints filed before the same

Court relating to the dishonor of cheques issued as a part of the

same transaction.

5. Trial Courts have no inherent power to review or recall the issue

of summons in relation to complaint filed under section 138 of

N.I. Act. However, the same shall not affect the power of the

Trial Court under section 322 of Cr.P.C to revisit the order of

issue of process in case it is brought to the court’s notice that it

lacks jurisdiction to try the complaint.

6. Section 258 of Cr.P.C. has no applicability to complaints under

section 138 of the N.I.Act. The words “as far as may be” in

section 143 are used only in respect of applicability of sections

262 to 265 of the Code and the summary procedure to be

followed for trials under the said Code.

7. The appellate courts before which appeals against the judgments

in complaint under section 138 of the N.I. Act are pending are

directed to make an effort to settle the dispute through mediation.

These practice directions shall come into force with immediate

effect.

HIGH COURT OF JUDICATURE APPELLATE SIDE

AT BOMBAY

C I R C U L A R

Dated : 27th JANUARY 2022

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Whether court should set aside exparte decree if defendant refused to accept service of summons?

The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The order dated 19.02.1997 was thus completely in conformity with the legal requirements. In a slightly 

different context, while considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr AIR 2007 SC (Supp) 1705 made following observations:-

“14. 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. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. 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. This Court has already held that when a notice is sent by registered post and is returned with a 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. [Vide Jagdish Singh v. Natthu Singh AIR 1992 SC 1604 : State of M.P. vs. Hiralal & Ors.  (1996) 7 SCC 523 and V. Raja Kumari vs. P. Subbarama Naidu & Anr. (2004) 8 SCC 774]. … ….”

20. Even after the passing of the ex-parte decree, the report filed by the process server on 04.04.2000 clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice. Despite such knowledge, Respondent No.1 allowed

the property to be put to auction in the month of December, 2000. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1.

21. In the light of the features indicated above and the fact that the auction was allowed to be undertaken, Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. OF 2021

VISHWABANDHU  Vs SRI KRISHNA AND ANR. 

Author: Uday Umesh Lalit, J.

Dated: September 29, 2021. 

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Can a court issue a non-bailable warrant against the accused in a criminal case if a summons were issued to him on Whatsapp?

 The Crl.M.C is filed aggrieved by the non-bailable warrant issued against the petitioner. The specific case put forth by the petitioner is that the summons, alleged to have been sent through WhatsApp to his mobile phone, had never reached him, as he has not downloaded the WhatsApp application on his phone.

4. The above provisions do not provide for service of summons

through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons.

6. In the case at hand, the summons is stated to have been

issued through WhatsApp, which is not an accepted mode of service.

As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ANOOP JACOB Vs STATE OF KERALA

Crl.M.C.No.1658 of 2021

Dated this the 9th day of April, 2021

PRESENT

 MR.JUSTICE V.G.ARUN

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Whether court can direct the party to serve a bailable warrant to the witness personally?

 It has next been contended by Mr. Lodra that the trial court had committed material irregularity in directing the plaintiff to get the warrants served 'dasti' and in default the remaining evidence of the plaintiff shall be closed. This order is also wholly erroneous and is not in consonance with the well established procedure laid down in the Code of Civil Procedure. A Party cannot be called upon to serve warrant upon the witnesses. The service of the warrant should be through the agency of the court itself and it cannot be left to a private party. Such a direction therefore, being wholly erroneous is quashed.{6}

7. The further direction for directing the plaintiff to attend on 17.10.77 in the court for collecting the warrants is equally erroneous and unsustainable in law. It is for the Court's bailiff to collect the warrants and effect service on the persons. It is none of the duty of the party to effect the service of the warrants.

Rajasthan High Court

Pukh Raj vs Gram Panchayat Sanchore on 12 March, 1978

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Whether licence granted to the licensee is revoked on the filing of eviction suit?

Also, it is clarified that the plea of the defendant she had never received the legal notice dated 18.04.2015, has not been factored in this adjudication because in view of Section 61 of the Easements Act, 1882, the licence of the defendant to stay at the second and third floor of the suit property, stood definitely revoked, with effect from the day, when the defendant had received the summons for settlement of issues of this suit.

IN THE HIGH COURT OF DELHI

RSA No. 23/2019 and CM No. 4782/2019

Decided On: 21.07.2020

JAGRITI@GAYATRI Vs VIKAS SHARMA

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Whether substituted service of summons to accused is permissible in a criminal case?

Section 65 of Cr.P.C. prescribes that if service cannot by the exercise of due diligence be effected as provided in Sections 62, 63 or 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper. Indisputably the mode of service as prescribed under Section 65 of Cr.P.C. is substituted service viz., by affixture of one of the duplicates of the summons to some conspicuous part of the house of the accused. Such a mode of service of summons to the accused could be resorted to when the service of summons to the accused in the manner as contemplated under Sections 62, 63 or 64 cannot be effective. In other words, when the summons to the accused cannot be served under the due process of law, the same could be served by substituted method of service as contemplated under Section 65 of Cr.P.C. No doubt such a mode of service as prescribed under Section 65 of Cr.P.C could be resorted to only after exhausting the other mode of service of summons under Sections 62, 63 or 64 and the same having been found to be ineffective. But the fact of the matter is that the service of summons to the accused other than the personal service is recognized under law. That is to say, service of summons to an accused even in criminal trial could be effected by substituted service by affixture of one of the duplicates of the summons to some conspicuous part of the house in which the accused ordinarily resides. There cannot be any dispute that such a mode of service is recognised under law even in criminal trials. Hence the answer to Question No. 2 shall be in the affirmative. Similarly Section 144 of the Negotiable Instruments Act recognises the alternate mode of service of summons to the accused either by speed post or through courier service. In this context, a reference may be made to the provisions contained under Section 144 of the Negotiable Instruments Act which prescribes that notwithstanding anything contained in the code of criminal procedure, and for the purposes of this chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works for gain, by speed post or by such courier services as are approved by a Court of Session and Sub-section (2) of Section 144 says where an acknowledgement purporting to be signed by the accused or the witness or an endorsement purported to be made by any person authorised by the postal department or the courier services that the accused or the witness refused to take delivery of summons has been received, the Court issuing the summons may declare that the summons has been duly served. Therefore in terms of Section 144 of the Negotiable Instruments Act, the service of summons to an accused could be effected by resorting to one of the modes prescribed therein and such a service could be held or declared to be sufficient as in the case of Section 65 of Cr.P.C. It is to be concluded therefore that substituted mode of service to an accused is recognized in a criminal trial whether it be an offence under the IPC or under the Negotiable Instruments Act. 

IN THE HIGH COURT OF KARNATAKA

Reference in Criminal Petition No. 778/2005

Decided On: 30.06.2005

 Mac Charles (I) Ltd.  Vs.  Chandrashekar and Ors.

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Supreme Court: Service of Summons may be effected by e-mail, FAX, instant messaging services, such as WhatsApp, Telegram, etc

I.A. No. 48461/2020- Service of all notices, summons

and exchange of pleadings

Service of notices, summons and exchange of

pleadings/documents, is a requirement of virtually

every legal proceeding. Service of notices, summons

and pleadings etc. have not been possible during the

period of lockdown because this involves visits to

post offices, courier companies or physical delivery

of notices, summons and pleadings. We, therefore,

consider it appropriate to direct that such

services of all the above may be effected by e-mail,

FAX, commonly used instant messaging services, such

as WhatsApp, Telegram, Signal etc. However, if a

party intends to effect service by means of said

instant messaging services, we direct that in

addition thereto, the party must also effect service

of the same document/documents by e-mail,

simultaneously on the same date.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

SUO MOTO WRIT PETITION (C) NO. 3/2020

IN RE COGNIZANCE FOR EXTENSION OF LIMITATION 

VERSUS

Respondent(s)

IA No. 48672/2020 - APPROPRIATE ORDERS/DIRECTIONS

IA No. 48375/2020 - CLARIFICATION/DIRECTION

IA No. 48461/2020 - CLARIFICATION/DIRECTION

IA No. 48673/2020 - EXEMPTION FROM FILING AFFIDAVIT

IA No. 48374/2020 - INTERVENTION APPLICATION

IA No. 48416/2020 - INTERVENTION APPLICATION

IA No. 48408/2020 - INTERVENTION APPLICATION

IA No. 48671/2020 - INTERVENTION/IMPLEADMENT)

Date : 10-07-2020 These applications were called on

for hearing today.

CORAM :

HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE R. SUBHASH REDDY

HON'BLE MR. JUSTICE A.S. BOPANNA

UPON hearing the counsel the Court made the following

O R D E R

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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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When personal notice is to be issued in Representative suit?

In this judgment at page 906 reference is made to Bir Singh v. Pirthi Singh, AIR 1928 Lah 693, where personal notices were served on 79 defendants and the learned Chief Justice considered this to be the right method in such suits. In the present case also as noticed above, there are only 57 persons to be served and, in my opinion, the desirable and right course, would have been to serve these parties personally. In the case before me service appears to have been effected under the provisions of O. V, R. 20, Code of Civil Procedure. This provision does not dispense with or do away with the provision of law which lays down that the defendant is entitled to receive a copy of the plaint or, in certain circumstances, a concise statement.

In Pesu Mal Harbhagwan Das v. Bishen Das Mewa Ram AIR 1927 Lah 376, Jai Lal J. observed that where the summons is affixed on the door of the defendant's house, but is not accompanied by a copy of the plaint, the affixation of such summons is not a sufficient compliance with the law and the service of summons in this manner is not a proper service. 

IN THE HIGH COURT OF PUNJAB

Second Appeal No. 409 of 1954

Decided On: 27.02.1959

Bishan Singh Kala Singh Vs.  Mastan Singh Sarup Singh and Anr.

Hon'ble Judges/Coram:

I.D. Dua, J.

Citation: Citation : AIR 1960 P and H 26

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Whether in Maharashtra in civil case summons can be served to female?

 In view of above, the subordinate courts are directed to ignore the restrictions contained in Order V Rule 15 of the Code of Civil Procedure, as amended by the Bombay High Court with effect from 01.10.1983, which requires service to be done only on adult male member of the family and instead follow Rule 15 of Order V of Code of Civil Procedure 1908 as enacted by Parliament, which reads as follows:

"15. Where service may be on an adult member of defendant's family.- Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.

Explanation.- A servant is not a member of the family within the meaning of this rule."

Bombay High Court

Rajkumar Sampatraoji Kuthe vs Iind Additional District Judge on 16 September, 2011

Bench: S.A. Bobde, M.N. Gilani

                                             1

          

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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

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Whether court should proceed exparte even if there is no proper service of summons?

 In the present case, the notice was sent initially by RPAD and the envelope has returned with endorsement D/L 23-08-16 and 24-08-16. An intimation was given on 25-08-2016 and as the addressee did not visit the post office for collecting the registered post envelope, it was returned as unserved. The envelope nowhere shows that it was refused by the noticee i.e Appellant herein. Thereafter, summons was reissued through bailiff. That time the opponent was not there. The papers disclose that the notice was issued for the first time on 13-06-2016 and the first notice issued returned unserved as the bailiff did not get sufficient time for service.

8. This is a custody matter of a child before the Additional District Judge-5, Aurangabad, who was expected to be sensitive to the rights of the parties and was bound to verify the record before passing ex-parte order. In the first place, there was no attempt to serve the notice dated 14-08-2016 for want of time, still the Advocate for appellant filed false application dated 20-08-2016 (Exhibit-7) that the opponent No. 1 was avoiding to accept the notice. There was no material to accept the statement, still the Court proceeded with the application. Pertinently, the claim was filed at Jalgaon and the present appellant was residing with her father at Bhadgaon, District Jalgaon. As per Order V of the CPC, there is no provision of effecting service by mere RPAD. Still, the application was casually allowed. When there was no service by RPAD, still the ex-parte order was passed. The RPAD envelope does not bear the endorsement as not claimed, still the order shows that there was an endorsement as not claimed. Even if, it is assumed to be true, still such endorsement does not mean that it is endorsement of refusal to accept the service. Even if, there would have been refusal to accept the service as per Order V, Rule 17 of the CPC, service by pasting/affixing the copy of notice + plaint on the outer door or some other conspicuous part of the house was essential alongwith the report to that effect of the bailiff. No such efforts were made. Only one attempt was made through bailiff when the opponent was not found in house. This type of casual approach by a District Judge in the sensitive matter of child custody for proceeding exparte without application of mind was not expected. As there was no service of notice, the impugned ex-parte Order and Judgment is not tenable and deserves to be set-aside.

In the High Court of Bombay

(Before A.M Dhavale, J.)

 Jayshri Gajendra Mahajan,v. Gajendra Pandit Mahajan, 

First Appeal No. 2815 of 2017

With

CA/9798/2017 in FA/2815/2017

Decided on August 7, 2018

Citation: 2018 SCC OnLine Bom 2233

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Whether tenant is liable to be evicted if he fails to make payment of arrears of rent within 90 days from service of summons?

 The appellate Court has considered the provisions of section 15(3) of the Maharashtra Rent Control Act, 1999 (for short, referred to as the said Act) in the light of rival submissions and evidence brought on record and in para 16 of the judgment, observed as under:

16. I on perusal of record and proceeding in Civil Application as well as Civil Suit came to know that the tenant deposited nothing in the court along with arrears of rent, interest, costs of the suit etc. as per section 15(3) of the Maharashtra Rent Control Act. Of course some payment made in the court as per Exh.18, 28, 50, 51, 55 and by virtue of some applications dated 14/12/2005, 18/7/2006, 15/2/2007, 13/8/2007 and 7/1/2009 (those applications are without exhibits). But according to me payments made thereto will not allow the tenant to claim relief against forfeiture. The tenant could have avoided passing of decree for possession on the ground of arrears of rent by making payment to that effect within the period of 90 days from the date of service of summons. This mistake on his part has made entitled the landlords to claim relief of eviction on the ground of default. The ratio from the cited case is squarely applicable to the present case. Therefore point no.4 & 5 is answered in favour of landlords.

(Emphasis supplied).

The aforesaid conclusion reached by the appellate Court is in consonance with the evidence brought on record by the parties. Therefore, the said findings are confirmed.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 168 of 2011

Decided On: 20.10.2011

Sunil Mulchand Jain Vs.  Purnima Prakash Kulkarni

Hon'ble Judges/Coram:

S.S. Shinde, J.

Citation: 2012(2) ALLMR 752

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How to prove notice sent in PDF Format Delivered Through WhatsApp?

1)  The Respondent to the Execution Application has been

evading service of this Notice under Order XXI Rule 22 of the Code

of Civil Procedure 1908. He was served by an authorized officer of

the Claimant, Ms Fatema Kalyanwala by sending a PDF and

message to his mobile number as a WhatsApp message. For the

purposes of service of Notice under Order XXI Rule 22, I will

accept this. I do so because the icon indicators clearly show that not

only was the message and its attachment delivered to the

Respondent’s number but that both were opened.

2)  A print-out of the WhatApp message is taken on record and

marked “N” for identification with today’s date. The second print

out is of the WhatsApp contact number of the Respondent. This

shows his contact number. This is also taken on record and marked

“N2” for identification with today’s date. This is sufficient for the

purposes of service of Notice under Order XXI Rule 22.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE NO. 1148 OF 2015

IN

EXECUTION APPLICATION NO. 1196 OF 2015

SBI Cards & Payments Services Pvt Ltd  V Rohidas Jadhav.

CORAM: G.S. PATEL, J

DATED: 11th June 2018, 

Citation: 2018 SCC OnLine Bom 1262

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Precaution to be taken by court while deciding application for substituted service of summons

 The record before the Court would indicate that the Trial Court by its order dated 9 February 2011 directed the issuance of summons to the original Defendant, returnable on 15 March 2011. In pursuance of the order, summons were issued on 4 March 2011. The report of the bailiff dated 11 April 2011 indicates that the summons were returned unserved and the bailiff was informed that the original Defendant had left the premises nearly two years earlier and resided elsewhere.

15. Order V Rules 17 provides as follows:

17. Procedure when Defendant refuses to accept service, or cannot be found.- Where the Defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, 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 and there is no likelihood of his being found at the 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 'whose presence the copy was affixed.

Evidently as the report of the bailiff indicates, he was unable to find the Defendant at the address which was mentioned in the summons. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order V Rule 17. When the application for substituted service was filed before the Trial Court Under Order V Rule 20, a cryptic order was passed on 2 September 2011. Order V Rule 20 requires the Court to be satisfied either 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. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the Trial Court failed to apply its mind to the requirements of Order V Rule 20 and passed a mechanical order. Besides this, as observed by the learned Single Judge of the High Court, the Trial Judge ignored the provisions contained in Chapter III of the Civil Manual issued by the High Court on its appellate side for the guidance of civil courts and officers subordinate to it. Paragraphs 33 to 36 of Chapter III are extracted below:

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 71 of 2018 (Arising out of SLP (C) No. 5847 of 2017)

Decided On: 29.01.2018

 Neerja Realtors Pvt. Ltd. Vs.  Janglu (dead) thr. L.R.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation: (2018) 2 SCC 649

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Whether service of notice can be presumed even if postal remark is left?

   Jammu  and Kashmir Houses and Shops Rent  Control Act,
1966: Section 11--'Serves a notice in writing through post'-
-Inter-pretation  of--Posting a pre-paid  registered  letter
containing tenant's  correct address--Sufficiency of.



HEADNOTE:
    In November 1976, the respondent issued a notice to  the
appellant  under section 11 of the Jammu & Kashmir Houses  &
Shops  Rent  Control Act, 1966 calling upon it to  pay  the
arrears of rent. The notice also terminated the tenancy  and
called upon the appellant to vacate the  demised  premises.
The notice sent by registered post was received back by  the
respondent  with  the  endorsement  "left  without  address,
returned to sender". Thereupon the respondent caused a copy
of  the   notice  to be fixed to one of  the  doors  of  the
premises in question. No payment of rent was however made by
the appellant subsequently. The respondent, therefore, filed
a  suit in June 1977 seeking ejectment of  the appellant  on
the  ground  of default in the payment of  rent.  The  Trial
Court  ordered eviction. and the appellant's appeals  before
the District .Judge and the High Court against the order  of
eviction failed.
    Before  this Court the appellant  contends that (1)  the
safeguards in ss. 11 and  of the Act are intended for the
benefit  and protection of the tenant and therefore,   where
the  Act provides for the service of the  notice,  by  post.
this requirement has to be strictly complied with; (2) such
postal service can neither be presumed nor considered to  be
good service where The latter is returned to the sender  due
to non-availability of the addressee; (3) in the absence  of
any enabling provision, service by  some other mode, such as
affixture,  cannot be treated as sufficient compliance with
the statute; and (4) where a power is given to do a  certain
thing  in a certain way, the thing must be done in that  way
or  not  at  all  and  other  methods  of  performance  are
necessarily forbidden.
    Dismissing the appeal, it was,
    HELD: (1) The proviso to clause (i) of section 11(1) and
the proviso to section 12(3) are intended for the protection
        PG NO 983
        PG NO 984
of  the tenant. A Nevertheless, it will be easy to see that
too strict and literal a compliance of their language  would
be impractical and unworkable. [988H; 989Al
    (2)  The proviso insists that before any amount of rent
can  be  said to be in arrears, a notice has  to  be  served
through post. All that a landlord can do to comply with this
provision   is to  post  a  prepaid  registered   letter
(acknowledgment  due or otherwise) containing  the  tenant's
correct  address.  Once  he  does this and  the  letter  is
delivered to the post office, he has no control over it.  It
is  then  presumed to have been delivered to  the  addressee
under s. 27 of the General Clauses Act. [989A-B]
    (3)  To  interpret the provision as requiring  that  the
letter must  have been actually delivered to the  addressee,
would be virtually rendering it a dead letter. [989F]
    (4) If a registered letter addressed to a person at  his
residential address does not get served in the normal course
and  is  returned,  it can   only  be attributed  to  the
addressee's  own conduct. If he is compelled to be away  for
some  time,  all  that he has to do is to  leave  necessary
instructions with the postal authorities. [989H; 990A]
    (5)  The  more  reasonable,  effective,  equitable  and
practical interpretation would be to read the words "served"
as  "sent by post". correctly and properly addressed to  the
tenant,  and the word "receipt" as the tender of the  letter
by  the postal peon at the address mentioned in the  letter.
No  other  interpretation will fit the situation  as  it  is
simply not  possible  for  a  landlord  to  ensure  that  a
registered  letter  sent  by  him gets  served  on,  or  is
received by the tenant. [990B-C]
    (6)  The statute prescribes only one method  of  service
for  the notice and none other. To require service  by some
other  method  to  be effected over  and  above  the  postal
service would be to travel outside the statute. [99OF]
    (7) Where the statute does not specify any additional or
alternative  mode  of service, there can be no warrant  for
importing into the statute a method of service on the  lines
of  the provisions of C.P.C. This Court would therefore  not
like  to hold that a substituted'' service. such as the  one
effected by the landlord in the present case, is a necessary
or permissible requirement of the statute. [990G]
    (8)  The provision in regard to the notice contemplated
by  the  statute is unsatisfactory and it is hoped that  the
        PG NO 985
legislature would soon set it right. On the provision as  it
stands,  a landlord must be held to have complied  with  the
statutory   requirement  by  sending  a   notice   correctly 

addressed to the tenant by registered post.

Supreme Court of India

Madan & Co vs Wazir Jaivir Chand on 28 November, 1988

Equivalent citations: 1989 AIR 630, 1988 SCR Supl. (3) 983

BENCH:
RANGNATHAN, S.
MUKHARJI, SABYASACHI (J)

Citation: AIR 1989 SC 630

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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

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