Substituted Service: Any incongruence between C.P.C and Limitation Act 1963?

A frequently encountered episode in civil litigation is the service of summons. Order V of the Code of civil procedure exclusively deals with the issue and service of summons. When a suit has been instituted, summons are issued to the defendant so as to enable him to present his version of the case within 30 days from the date of service of summons. Where the court is satisfied that the defendant is avoiding the service of summons, and they cannot be served in the ordinary way, the court shall order the summons to be served by affixing the copy, in a conspicuous place both at the last residence known of the defendant and also in the courthouse Order V R. 20 (1).

The court must be satisfied that there is a 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 cant be served in the ordinary way.

However, substituted service is impermissible if summons has not been refused or avoided by the defendant. Absence from home is insufficient to justify substituted service.

If a person is transferred and an attempt was not made to enquire his place of transfer, substituted service is impermissible. Subjective satisfaction of the trial court is enough, Court of appeal cannot question it. High court will not interfere if proper procedure in effecting substituted service is made.

Subrule 1A of Rule 20, has been inserted by the amending Act of 1976 making newspaper publication as one of the modes of substituted service.

Order V R 20 (2) Effect of substituted service: Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally.

 It is due to service as contemplated in order IX Rule 13(2)

However, Article 123 of the Limitation Act 1963 says:

So, the explanation to Article 123 says substituted service is not deemed to be due service. Is it a contradiction to what is mentioned in Order V Rule 20 (2) CPC.  It has been held in Kanshi Vs. Bhagawan, that Limitation Act should be so read as to avoid inconsistency.

On closer observation of Art 123, it starts with the words, “for the purpose of this Article”. The Hon’ble Supreme Court has held that “Article 123 of the Limitation Act is in two parts. In a case where summons have been served upon a party, the first part shall apply. However, in a case where the summons has not been served, the second part shall apply”.

The Punjab & Haryana High Court has given a detailed explanation than ever before, but can it be adapted by other High Courts in the absence of a clear order on the point of law from the Supreme Court that needs to be waited and watched. The Hon’ble Court says “The two provisions have to be so read as to avoid any conflict, and it is immediately apparent that the Explanation to Article 123, on its very words, has to be confined to that Article alone and for the purpose of limitation an ex parte decree can be set aside within thirty days from its date, but, where there has been no due service, within thirty days from the knowledge of the decree. In the case of substituted service under Rule 20 of Order 5, it would not ordinarily be open to the party served under that Rule to say that there was no due service, because Sub-rule (2) of Rule 20 of Order V says specifically that such substituted service shall be as effectual as personal service. It is the rigor of this sub-rule which the Explanation to Article 123 is meant to meet, but only for the purpose of enabling the person against whom an ex parte decree has been passed to make an application to have the decree set aside”

In the absence of a clear order from the Supreme Court, it can be safely deduced that, if the defendant does not succeed to show that the conditions for substituted service were not fulfilled or he had no knowledge of the claim, the substituted service is deemed effective.

1. Teharoon vs. surajmall AIR 1984 cal 82
2. Balraj vs. Krishan AIR 1983 NOC 49 ( Del)
3. Hazra vs Tanpal AIR 1980 pun 315
4. M.L Nagarathnamma vs. S.R. Suryanarayanan AIR 1985   NOC 214
5. Hemchand vs. Subhkaran AIR 1967 Bom 351
6. Satya Narain vs. Narsing AIR 1969 Pat 112.
7. Sneh Gupta vs. Devi Sarup CIVIL APPEAL NO.1085 OF 2009   (Arising out of SLP (C) No.4045 of 2007)

Kanshi Ram Mohan Lal vs. Bhagwan Kaur AIR 1970 P&H 300