Order V Rule 20 CPC | Locked House, Incomplete Address Not Enough To Resort To Newspaper Publication For Summons: Rajasthan High Court
The Rajasthan High Court held that when the process server's report reflected a locked house or an incomplete address, it did not by itself justify adopting the substituted service under Order V Rule 20 CPC, unless the Court was satisfied that the defendant was deliberately evading service and ordinary service was impracticable. “The Court must apply its mind to the process server's report...
The Rajasthan High Court held that when the process server's report reflected a locked house or an incomplete address, it did not by itself justify adopting the substituted service under Order V Rule 20 CPC, unless the Court was satisfied that the defendant was deliberately evading service and ordinary service was impracticable.
“The Court must apply its mind to the process server's report and the surrounding circumstances and arrive at an informed conclusion that ordinary service cannot reasonably be effected. Such satisfaction may, depending upon the language and circumstances, be inferred from the order itself and need not invariably be expressed in any particular formula. But the record must nevertheless disclose the existence of the judicial satisfaction which the statute requires.”
While setting aside an ex-party decree in a suit of specific performance, the bench of Justice Farjand Ali observed that the power to direct the exceptional mode of substituted service under Order V Rule 20, CPC, was not absolute, and that the Court was required to be satisfied of 3 aspects:
1) Whether there was reason to believe that the defendant was deliberately avoiding service; 2) whether, for any reasons, the summons could not reasonably be served in the ordinary manner; 3) whether the ordinary and personal mode of service was attempted with reasonable diligence and proved unfeasible.
The Court further opined that even while adopting the substituted mode of service and directing publication of summons in a newspaper, the Court was expected to consider defendant's last known resident, the nature & extent of paper's circulation, and the language of publication, to ensure that publication was reasonably capable of bringing the proceedings to defendant's knowledge.
“The adoption of substituted service, therefore, cannot be permitted in an unscrupulous, cavalier or routine manner, for what the law requires is not a mechanical endorsement of an application but a conscious judicial determination founded upon the material available before the Court.”
For context, the Court was hearing a challenge against trial court's order that rejected petitioner's application to set aside an ex-parte decree.
A suit for specific performance was filed against the petitioners in 2013 in which the issuance of summons were directed which returned unserved with the observation that the house was found locked and it was informed that the petitioners were residing somewhere in Jaipur.
A second attempt was made for issuing summons, which were also returned unserved with an observation that the petitioners had gone to Jaipur.
Thereafter an application was filed by the respondent for substituted mode of issuance of summons by publishing in the newspaper which was allowed by the trial court. Thereafter, the matter proceeded ex-parte and an ex-parte decree was passed against the petitioners.
When the petitioners found out, the application to set aside the decree was filed, which was rejected. Hence, the present petition was filed.
After hearing the contentions, the Court observed that the reasons for non-service of ordinary services, that were revealed in the process server's report were not such that closed the avenue of ordinary service, but furnished a lead to the Court which should have been pursued.
It was held that the appropriate action should have been to ask the plaintiff-respondents to furnish complete address of the defendants and further efforts should have been made for ordinary service.
The Court opined that court needed to apply its mind to the process server's report and surrounding circumstances and arrive at an informed decision that ordinary service could not reasonably be affected.
“Before directing substituted service, the Court was required to consider whether the available material disclosed a conscious attempt on the part of the defendant to evade service or whether, despite reasonable diligence, ordinary service had become impracticable… The fact that the defendants were stated to have gone to Jaipur could not, by itself, furnish a rational basis for concluding that they were deliberately avoiding the process of the Court. The two concepts are materially distinct: absence from a particular address is not equivalent to evasion of service.”
Furthermore, in relation to the substituted service, the Court observed that the record only showed that the publication was made, but that did not establish that the publication resulted in effective service. It held that service of notice could not be presumed merely because it came in a newspaper.
In this background, the Court held that there was nothing to show that the petitioners had knowledge of pendency of the suit or the date on which their appearance was required.
“Finality of litigation is undoubtedly an important consideration, and a defendant who, despite due notice and sufficient opportunity, remains absent cannot ordinarily be permitted to reopen the proceedings on technical grounds. But that principle has no application where the record itself raises a serious and substantial doubt regarding the very service through which the defendant was supposed to have been brought before the Court.”
Since the summons were not duly served upon, the application for setting aside the ex-parte decree had to be allowed.
Accordingly, the appeal was allowed, and the ex-parte decree of the trial court was set aside.
Title: Kanta Devi & Ors. v Parsaram & Anr.
Citation: 2026 LiveLaw (Raj) 400