Does Refusal By Family Members To Accept Court Notice Amount To Valid Service? Orissa High Court Answers

Highlighting significant backlog of cases due to debatable nature of 'sufficiency' in service of notice/summons, the Division Bench of Justice Manash Ranjan Pathak and Justice Sibo Sankar Mishra remarked–

“Delay and prolongation of the judicial process are largely attributable to the hindrances that occur in the service of summons/notices upon the parties. Quite often, we encounter situations where, even if notice is sent to the correct address, the postal endorsement leaves the matter in an ambiguous state, making the determination of sufficient service a debatable question.”

The Court was in seisin over an appeal under Section 19 of the Family Courts Act, 1984 whereby the appellant-wife challenged the judgment of the Judge, Family Court, Berhampur, which dissolved the marriage between her and her husband.

As the counsel representing the respondent-husband died during the pendency of the appeal, a fresh notice was issued through Speed Post with acknowledgement due (AD) as well as through Special Messenger. The report of the Special Messenger revealed that upon visiting the residence of the respondent-husband, the family members present refused to receive the notice and directed the messenger to return. Consequently, the notice was affixed on the door/grill of the house of the respondent in presence of two witnesses and report to that effect was submitted.

The question which arose for consideration was whether such service of notice can be deemed or presumed to be sufficient, especially when the respondent/his family members resisted to receive the same.

To answer the question, the Court referred to Order VI Rule 14A CPC which mandates that every pleading shall contain the address for service and such address shall be deemed to be the proper address for effecting service of all processes. Once notice is sent to such disclosed or known address, the party cannot subsequently avoid service by remaining absent or unavailable.

The Bench further underlined the provision under Order V Rule 9(5) which strengthens the presumption of service by providing that where a summons is properly addressed, prepaid and sent by registered post with AD, the Court may declare that the summons has been duly served, notwithstanding non-receipt of the acknowledgement, if it is satisfied that the addressee is deliberately avoiding service. It further held –

“It is relevant to note that under Order V Rule 17 of the Code of Civil Procedure, 1908 where the defendant or his agent refuses to receive the summons, the serving officer is empowered to affix a copy of the summons on the outer door or conspicuous part of the house, and such service, upon due compliance and report, can be treated as valid under Order V Rule 19 CPC.”

Taking cue from the decisions made by the Supreme Court in Madan & Co. v. Wazir Jaivir Chand (1988) and C.C. Alavi Haji v. Palapetty Muhammed (2007), the Court summarized the principles governing “deemed service of notice” as follows–

1. Where a notice is properly addressed, prepaid and sent by registered post, the sender is deemed to have discharged his legal obligation.
2. Upon dispatch, a presumption of due service arises under Section 27 of the General Clauses Act, and actual receipt by the addressee is not always necessary.
3. Refusal to accept notice or conduct indicating deliberate avoidance amounts to valid and sufficient service in the eye of law.
4. Endorsements such as “not found”, “not in station”, or “addressee has left”, “not available in the house”, “house locked” or “shop closed” do not defeat service. However, if a registered letter addressed to a person at his correct address does not get served in the normal course and is returned, it can be attributed to the addressee's own conduct.
5. Once the notice is sent by registered post to the correct address, due service has to be presumed, unless the contrary is proved by the addressee.
6. The requirement of service must be interpreted in a practical and reasonable manner, and an addressee cannot defeat service by remaining absent or failing to make arrangements to receive communications.

Accordingly, the Court concluded that the appellant has not only complied with the statutory requirement of dispatching notice to the correct address but has also taken additional steps by way of personal service and affixture. Such actions demonstrated bona fides on the part of the appellant-wife and thus, the Court deemed the service of notice to be sufficient.

Case Title: Smt. Sunita Nayak v. Anup Kumar Tota

Case No: MATA No. 154 of 2015

Counsel for the Appellant: Mr. Niranjan Singh, Advocate

Counsel for the Respondent: Mr. Ashok Das, Advocate

Citation: 2026 LiveLaw (Ori) 78