Service of summons
Dhruv
(Querist) 02 August 2009
This query is : Resolved
Respected Sirs,
In a civil case summons sent by registered post to opposite party.
Summons not returned back till today ie nearly 40 days.
Whether is it right that if summons not back in 30 days it will be presumed as served.
Any case law of high court or supreme court in this regard???
thanks.
Y V Vishweshwar Rao
(Expert) 02 August 2009
The Service of Summons must be to the satisfaction of the Court . it is better to issue fresh summons through Court and RP to avoid any proceedigns to set aside the expartew Decree or proceedigns, by the Defedant !
M. Sahul Hameed
(Expert) 02 August 2009
It is presumed that the summons are not retutned within 30 days is not a sufficient service but it means that the service is not completed Hence fresh notice is necessary to the defendant and it is mandatory.
Dhruv
(Querist) 02 August 2009
Thanks Rao and Hameed Sir.
I need a caselaw in my favour sir.
G. ARAVINTHAN
(Expert) 02 August 2009
Court will definitely order for fresh summons/notice.
mahendra rai jain
(Expert) 03 August 2009
Basant Singh V/s Roman Catholic Mission
2002(8) AD (S.C.) 290
mahendra rai jain
(Expert) 03 August 2009
CASE NO.:
Appeal (civil) 6489 of 2002
PETITIONER:
Basant Singh & Anr.
RESPONDENT:
Roman Catholic Mission
DATE OF JUDGMENT: 03/10/2002
BENCH:
Y.K. SABHARWAL & H.K. SEMA
JUDGMENT:
J U D G M E N T
SEMA,J
Leave granted.
The sole question that falls for consideration in this appeal is,
whether the service of notice sent by registered post with acknowledgement
card in terms of Order 5 second proviso to Rule 19A of the Code of Civil
Procedure read with Section 27 of the General Clauses Act, 1897 can be
accepted as a sufficient notice.
This appeal filed by the defendants (judgment debtors) arises
out of the following material facts. Suit No 473 of 1985 filed by the
landlord ended in passing of an ex-parte decree by the Trial Court on
30.5.1986. The appellants preferred an application on 6.10.1986 under
Order 9 Rule 13 for setting aside the ex-parte decree which was rejected by
the Trial Court. Their appeal before the appellate court and revision petition
before the High Court ended without any success. It appears, initially the
plaintiff (respondent herein) could not deposit the requisite process fee for
which the summons could not be issued to the appellants-defendants. On
2.4.1986, the Trial Court ordered the summons to be issued to the
defendants, both by ordinary process and by registered post, and the case
was adjourned to 30.4.1986. On a perusal of the record, and not disputed by
the parties, we find that the registered notices were issued to the defendants
vide postal receipt Nos.875 and 876 dated 24.4.1986. As on 30.4.1986,
summons issued by registered posts were not received back, the case was
adjourned to 30.6.1986 awaiting the receipt of the service report. On
30.6.1986, the Trial Court again ordered that fresh summons both by
ordinary post and registered post be issued within three days. The Trial
Court also ordered substituted service by resorting to Order 5 Rule 20
C.P.C. by publication of summons in local daily "Dainik Bhaskar". On
5.8.1986, it appears that a notice of publication in daily newspaper
"Aacharan" instead of "Dainik Bhaskar" as ordered by the Court has been
produced. This is one of the grievances of the appellants, which we shall be
dealing at appropriate place. On 22.8.1986, the Trial Court passed an order
to proceed ex-parte and fixed the case for 4.9.1986 for evidence of the
plaintiff. As the date fixed - 4.9.1986 was declared a public holiday, the
plaintiff's witness was examined on 5.9.1986 and the ex-parte judgment and
decree was passed on 30.9.1986. It is stated that the appellants came to
know of the ex-parte decree on 1.10.1986 and filed an application on
6.10.1986 for setting aside the ex-parte decree, as noticed above.
Learned counsel for the appellants contended that the Trial
Court has acted in violation of the procedure prescribed under Order 5 of the
Code of Civil Procedure, in issuing summons to the defendants. He further
contended that the substituted service can be resorted to only when the court
is satisfied that the defendant is avoiding the service or the service cannot be
effected in an ordinary way. The Trial Court having not passed any order
about the satisfaction as envisaged under the Code, it was not open to the
Trial Court to order for substituted service. This submission need not detain
us any longer. On the facts of the case the court's satisfaction is implicit in
the order directing service by publication.
Order 9 Rule 13 of Code of Civil Procedure insists that the applicant
must satisfy the court two conditions (a) that the summons was not duly
served and (b) that the applicant was prevented by any sufficient cause from
appearing before the court when the suit was called on for hearing. In the
present case second condition is not attracted.
Regarding the contention of the counsel for the appellants that the
summons were not duly served, as the substituted se
Dhruv
(Querist) 08 August 2009
Thanks to all for their valuable time devotion.
