Procedure Under CPC For Affixing Copy Of Summons On Door/Conspicuous Part Of Defendant's House Mandatory Not Directory: Karnataka High Court

The Karnataka High Court has held that the procedure of affixing a copy of the summons on the outer door or some other conspicuous part of the housein which the defendant ordinarily resides under Order V Rule 17 CPC, if he is not available to receive it, is a mandatory procedure and not a directory procedure.Justice H P Sandesh held thus while allowing an appeal filed by one K Raja and set aside the decree passed by the trial court in a suit filed for recovery of money by V Prabhakar, after placing the appellant ex-parte. For context the provision pertains to the procedure to be followed when the defendant refuses to accept service, or cannot be found. The court said “The very reasoning given by the trial Court that it is directory not mandatory is a wrong notion of the trial Court and had lost sight of the very proviso of Order V Rule 17 and committed an error in coming to the conclusion that it was only a directory and hence, the very contention of the appellant that not complied with mandatory provisions of Order V Rule 17 of C.P.C, there is a true.” The appellant contended that when the suit summons was ordered to him it had been returned unserved and respondent by contending that petitioner was intentionally avoiding service of notice filed an application under Order V Rule 20 of C.P.C and taken notice through paper publication vide order dated March 26, 2017.It was contended, “Once the notice was returned with an endorsement he was not in station, at least he would have taken the notice by way of affixture and the same was not taken and proceeded to file an application under Order V Rule 20 of C.P.C. Thus no proper service was made on the appellant.” The respondent contended that notice was issued and he avoided service of notice and hence, paper publication was taken under Order V Rule 20 of C.P.C and cannot found fault with the procedure adopted in placing him ex-parte.The bench noted that admittedly notice issued was not served and thereafter notice was taken through RPAD and same was also unserved and endorsement was issued 'he was not in station' when the visit was made by the postman and thereafter an application was filed under Order V Rule 20 of C.P.C and the same was allowed and thereafter he was placed ex-parte.Referring to Order V Rule 17 of CPC and Order V Rule 20, which provide for substituted service of notice the court said, “The Court has to read both the provisions of Order V Rule 17 and Order V Rule 20 conjointly.” Then it said, “Having read conjointly the provisions under Order V Rule 17 as well as Order V Rule 20 and sub-clause (1), it is very clear that substituted service by way of affixture as well as paper publication, in view of amendment to sub-clause (1A) of Order V Rule 20 of C.P.C and before proceeding to the same, Order V Rule 17 is also to be taken note of, but in the case on hand it is not the case of refusal, but he was not present at the time when the postman went to make service on the appellant/defendant.” Following which it held, “When he was not in station and no such information was also given and nothing is mentioned that an intimation was delivered and when such being the case and when no such intimation is given, question of it has come to the notice of appellant/defendant does not arise. Without any notice, he was placed ex-parte and invoked Order V Rule 20 of C.P.C.” Emphasising that respondent ought to have taken steps again when the same (notice) was returned with an endorsement 'he was not in station' and there was no any intimation or information with regard to the initiation of the suit and did not comply with Order V Rule 17 of C.P.C. Allowing the appeal the court held, “The very contention of the respondent that the proviso of Order V Rule 20 is very clear with regard to amendment is concerned and to take the notice and purposefully he avoided service of notice of 2024 and hence, Order V Rule 20 of C.P.C is pressed into service cannot be accepted and hence it requires interference by this Court and the trial Court committed an error in dismissing the petition.” Case Title: K Raja AND V PrabhakarCounsel for Appellant: Advocate Abhishek HuddarCounsel for Respondent: Advocates Udita Ramesh and Abhishek SinghCitation No: 2024 LiveLaw (Kar) 501Case No: MISCELLANEOUS FIRST APPEAL NO. 7207 OF 2024Click Here To Read/Download Order

Procedure Under CPC For Affixing Copy Of Summons On Door/Conspicuous Part Of Defendant's House Mandatory Not Directory: Karnataka High Court

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