Arundas v. Priji – 2017 (5) KHC 693 rendered by a Division Bench of the High Court of Kerala, is not only per incurium, but it also takes away the options given to the Process Server by the Code of Civil Procedure, 1908 (‘the CPC’ for short). That apart, the above verdict will further retard the much maligned crawling progression of the civil litigation in this country. I am not delving deep into the sweep and amplitude of Order V of C.P.C which elaborately deals with the manner of service of summons. Rule 15 of Order V C.P.C 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]”.
This provision obviously applies only in a situation where personal service of summons on the defendant as insisted by Rule 12, has become impracticable due to his absence from his residence and an agent as contemplated by Rules 12 to 14, is also not available. These are all the options given to the Process Server in the event of his not being able to locate the defendant who is sought to be served at his residence. The learned Judges have ruled that when the defendant is absent from his residence, service of summons on an adult member of his family residing with him can be effected only if it is specifically so ordered by the Court. It is respectfully submitted that the C.P.C does not contain any such provision in this regard.
If the verdict of the Division Bench is driven to its logical conclusion, on the day when the Process Server goes to the residence of the defendant for effecting service of summons and the latter is absent in his house and the other conditions of Rule 15 are satisfied, the Process Server has to report the same to the Court and obtain fresh orders for service on an adult member of the family. Just think of a situation where by the time the Process Server obtains fresh orders from the Court for service on the adult member, the defendant himself is physically present at his residence ! Or, is it that the Court while ordering notice to the defendant should pass a composite order specifically empowering the Process Server to first comply with Rules 12 to 14 and if that is found impracticable, then to comply with Rules 15 or 17 as a last resort ?
If the conferment of sufficient freedom in the Process Server to resort to the above options provided by the C.P.C is found insufficient, the remedy is not to re-write the law but to suggest an amendment to the First Schedule for which power does exist in the High Court under Section 122 C.P.C. In my humble view, the above provisions do not require any amendment.
It would appear as though the High Court was not happy in the service of summons by recourse to Order V Rule 15 C.P.C both on the original side as well as in execution. When Rule 15 is the mode prescribed for service of summons in cases where the defendant is absent from his residence, I fail to see why should the High Court frown upon such a mode adopted by the Process Server and acted upon by the Court below ?
It is not as if the act of tendering of summons and service of summons by the Process Server on a party is not witnessed by anybody. Order V Rule 18 C.P.C read with Form No. 11 of Appendix B to C.P.C obliges the Process Server to satisfy the Court regarding the manner in which and the mode by which service of summons on the party was effected by him. Form No. 11 also provides for witnessing the tender and service of summons. The last but one column in Form No. 11 pertains to service by resort to Order V Rule 15 C.P.C. All these aspects have not been taken into account by the High Court while passing the above verdict and sending the same for reporting in the law journal.
Practitioners of law also have a duty to apprise (and not mislead) the Court regarding the correct legal position. Without resorting to overwriting the law, the High Court, if it wanted, could have given the defendant an opportunity to contest the case after putting him on terms on being satisfied that his conduct was not symptomatic of a protraction syndrome.
The statutory leeway of the Process Server should not be shackled by such unnecessary judicial over adventurism. It would be greatly appreciated if the High Court were to liberate the Process Servers from the curial chains of Arundas through the intervention of a larger Bench at the earliest.
Justice V. Ramkumar is a Former Judge at High Court of Kerala.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]