Order V Rule 17 of the CPC states that serving suit summons to defendants by affixing them is not just a guideline but a requirement, according to the Karnataka High Court.
The Karnataka High Court has determined that serving suit summons by affixture under Order V Rule 17 of the CPC is a mandatory requirement, not just a guideline. The Court granted an appeal under Order 43 Rule 1(d) of the CPC, overturning the ex-parte decree made by the Trial Court. The Bench found that the Trial Court made a mistake by dismissing the Appellant’s application under Order 9 Rule 13 along with Section 151 of the CPC, incorrectly viewing Order V Rule 17 as optional instead of mandatory. Justice H.P. Sandesh, in a Single Bench, remarked that the use of the word “shall” indicates that the Trial Court’s belief that it was merely a guideline was incorrect. The Court noted that the Trial Court overlooked the specifics of Order V Rule 17 and erred in concluding it was not mandatory. The Appellant’s claim that the mandatory provisions of Order V Rule 17 were not followed is valid. The respondent’s argument regarding Order V Rule 20 about amendments and notice was rejected, as it was seen as an attempt to avoid proper service. Therefore, the Court found it necessary to intervene, stating that the Trial Court erred in dismissing the petition under Order 9 Rule 13 and Section 151 of the CPC, and affirmed the points raised.
Advocate Abhishek Huddar represented the Appellant, while Advocate Udita Ramesh stood for the Respondent. Initially, summons were sent to the Appellant but were returned unserved with the note “defendant not in station.” A notice sent via Registered Post Acknowledgment Due (RPAD) also came back unserved with the same comment. The Trial Court then permitted substituted service according to Order V Rule 20 of the CPC. Notices were published in newspapers, and the Appellant was declared ex-parte, resulting in a decree. In 2022, the Appellant filed a miscellaneous petition to contest the ex-parte decree, claiming that the requirement under Order V Rule 17 of the CPC, which mandates that summons be affixed at the defendant’s residence, was not followed. The Trial Court dismissed this petition.
The High Court remarked that the rules in Order V Rule 17 of the CPC must be interpreted strictly. However, it noted that one should not be overly technical in applying these rules. If a careful review of the return, verified by the process server under oath, shows that all requirements were met, it would be incorrect to declare the service invalid just because it did not follow the exact format outlined in the Code of Civil Procedure. This point was elaborated in paragraphs 15 and 19 of the judgment.
The Bench observed that this situation was not about refusal; rather, the Appellant was absent when the postman attempted to deliver the service. “Since he was not at the location and no information was provided, and there was no mention of any notice being delivered, the issue of the Appellant/defendant being aware does not come up. He was placed ex-parte without any notice, invoking Order V Rule 20 of C.P.C.,” the Court clarified. As a result, the High Court approved the Appeal.
Cause Title: K. Raja v. V. Prabhakar (Neutral Citation: 2024:KHC:49086)
Appearance:
Appellant: Advocate Abhishek Huddar
Respondent: Advocates Udita Ramesh and Sri. Abhishek Singh