Law Commission Report
Need To Amend Order V , Rule 19A Of The Code Of Civil Procedure, 1908
9 a
LAW COMMISSION OF INDIA
ONE HUNDRED F ORTIETH REPORT
ON
NEED TO AMEND ORDER V. RULE 19A OF THE CODE OF CIVIL
PROCEDURE, 1908, RELATING TO SERVICE OF SUMMONS BY
REGISTERED POST WITH A VIEW TO
FORECLOSE LIKELY INJUSTICE
1991
JUSTICE M. P. THAKKAR
C/mirmcm
D.O. No. 7(7)/91-LC(LS)
Dear Minister,
Re:,_1':c:s5r¢£s1Li9,'z 9!, .1_4_<:t.LR:=I32:{-
Tel. No. Off. 38 44 75
LAW COMMISSION
GOVERNMENT OF INDIA
SHASTRI BHAWAN
NEW DELHI-110001
April 19. 1991.
Forwarded herewith please find the 140th Report of the Law Com-
mission of India encaptioned;
"NEED TO AMEND ORDER V. RULE 19A OF THE CODE OF
CIVIL PROCEDURE, 1908, RELATING TO SERVICE OF SUM-
MONS BY REGISTERED POST WITH A VIEW TO FORECLOSE
LIKELY INJUSTICE"
Dr. Subramaniam Swamy,
Minister of Law and Justice,
Government of India,
Shastri Bhawan,
New Delhi.
Encl, I 140th Report.
Yo urs sincerely.
.S'd/-
(M. P. TI-IAKKAR)
CONTENTS
Page
CHAPTER I Iiltrocluctory . . . . . , , 1
CHAPTER II Pr-.'--l')7() l);vc1o1m1c11ts . . . . . . . 2
CHAPTER [M This An1c11<l.aiici1t of I976 . . . . . . . 4
CHAPTER IV HL1l'd\llip Resulting from the Prcscpt Law . , , , 5
CHAPTER V Dcl'c11dzu1t Residing outside Jurisdiction . . . . , 9
CHAPTER VI Rccoi111i1ci1d.utio11> . . . . . . . 10
Notes and Rcfcrcnccs . . . . . . . . . 12
CHAPTER I
INTRODUCTORY
1-1 Perspective»-The Law Commission of}
India has suo motu taken up the question of amend-
ments needed in regard to the provisions concerning _
service of summons by registered post on realising
that miscarriage of justice has been occasioned in 3
the working of concerned provision.
1-2 The Prob/em.------By way of a brief statement
of the problem, it may be mentioned that under
Order V. Rule 19A of the Code of Civil Procedure,
the court is required to issue a summons for service
by post, in addition to personal service. So far as
service by post is concerned, the summons is sent by
registered post acknowledgment due, and it is pro-
vided that once the acknowledgment purporting to
be signed by the defendant (or the agent) is received
by the court or the postal article containing the sum-
mons is received back by the court with endorsement
by the addressee of refusal to take delivery, the court
"shall declare" that the summons had been duly
served. Experience of the working of the law relat-
ing to service of summons by registered post em-
bodied in Order V, rule l9A of the Code of Civil
Procedure as it stands at present, has revealed a
number of instances where injustice has been
occasioned to a litigant in as much as the concerned
provision enjoins to the elfect that if an article con-
taining the summons is received back with the endo,-_
sement "refused", the court "shall" declare
that the summons had been duly served. No dis-
cretion is left in the Court as the provision makes it
mandatory to make such a declaration. A number
of instances discussed in Chapter IV hereafter have
come to light where an unscrupulous postman may
make such an endorsement for dishonest reasons or
a negligent postman might have tendered the article
to a wrong person or a person other than the
addressee, and he might have refused to accept the
article. In the result, an ex-parte decree would have
been passed against the addressee by reason of the
mandatory declaration that he has been duly served
and serious prejudice, at times irreparable,would
have been occasioned to him.
1 -3 The Commission has, therefore, considered
it appropriate in order to promote the interest of
justice, to examine the question how the provision
should be refashioned, so as to foreclose the likely
injustice, and reduce the chances of confusion, with-
out afiecting the smooth and quick disposal of court
work.
1 -4 Present law as contained in Order V. Rule
l9A. Order V. Rule 19A(2) of the Code of Civil
Procedure, 1908 reads as under;:----
"l9-A. Simultaneous issue of summons for services
b_v post in addition to personal .vervice~.(1). ..
(2) When an acknowledgment purporting
to be signed by the defendant or his agent is re-
ceived by the Court or the postal article containing
the summons is received back by the court with an
endorsement purporting to have been made by a
pos/al employee to thc Pflect that the defendant
or his agent had refused to take delivery of the
postal article containing the summons, when ten-
dered to him, the Court issuing the summons
shall declare that the summons had been duly served
on the dc/'cndant:
Provided that where the summons was pro-
perly addressed, prepaid and duly sent by regis-
tered post, acknowledgment due, the declaration
referred to in this sub--rule shall be made not-
withstanding the fact that the acknowledgment
having been lost or mislaid, or for any other
reason, has not been received by the Court with-
in thirty days from the date of the issue of the
summons."
(emphasis added)
1-5 Hazards involved in a mandatory decla-
ration.--It is the mandatory declaration under Order
V. Rule 19A (2) which has created difliculties and
opened up the possibility of likely injustice by reason
of fraud practised with the help of a dishonest post-
man or on account of a lapse or mistake on the part
of an honest postman who might have tendered the
article to a wrong person as will be elaborated in
subsequent chapters.
16 flencc this report is targeted at making
appropriate recommendations to overcome the prob-
lems arising in this backdrop and foreclose likely
injustice occasioned to unfortunate litigant as noticed
in the cases discussed in Chapter IV.
CHAPTER ll
PRE-1976
2 -l Mode of service of summons under the
Code.----The scheme of the Code of Civil Procedure
as contained in Order V. Rule 9 (as originally
enacted), primarily contemplates personal service
of summons on the defendant. Rules 5 to 16 ofthat
Order mostly relate to personal service. Rule 17 pro-
vides that where the defendant refuses to receive
a summons, the serving officer shall affix a copy of
the summons on the outer door or some other cons-
picuous part of the house in which the defendant
ordinarily resides, carries on business or personally
works for gain. The serving otlicer shall then re-
turn the original summons to the court, with a report
of the circumstances under which service could not
be efiected in the proper way. Rule 19 provides for
a case where the summons is returned under the
provisions of Rule 17. The court, after perusing
the report of the serving officer and also. if necess-
ary, aftcr examining the serving olliccr, is empowered
either to declare that the service was sufficient. or to
order fresh summons being issued out.
2 -2 _ Servire by regmererl /ms1'.~Service by re-
gistered post as a permissible mode of service of
summons came to be inserted initially by local amend-
ments in Order V of the Code. In 1956 (Order V
Rule 20A), such service was permitted by a Central
Act, which amended the Code. But it was not
made mandatory. Refusal to accept service by
registered post did not (even under the 1956 amend-
ment), lead to a mandatory declaration by the court,
of the service being suflicient. It was in 1976 that
the law, while directing service of summons by re-
gistered post, along with the issue of summons for
personal service, also directed the court to declare
the service by registered post as sutficient service,
inter alia, where the "postal article" (i.e. the en-
velope containing the summons), came back to the
court with an endorsement of refusal.
2-3 Madras amendment in Order V. Rule 9.-~
As mentioned above 2/l, local amendments in some
States had made service by registered post a [)()]'..
missible mode of service. In Madras, for example,
in 1951, the High Court introduced rule 9(3) to pro-
vide for sending of the first summons by registered
post to the defendant. The sub-rule was as under;
"(3) Where the defendant resides in India,
whether within the jurisdiction of the court in
DEVELOPMENTS
which the tuit is instituted or not, the court may
direct the proper oflicer to causea summons
under this Order to be addressed to the defendant
at the place where he ordinarily resides or carries
on business or Works for gain, and sent to him.
by registered post prepaid for acknowledgment,
an acknowledgment purporting to be signed by
the defendant shall be deemed to be sufficient
proof of service of such summons".
2-4 Effect of refizsal (Madras amendmeni).---
The eflect of a refusal to accept a summons sent by
registered post under the Madras amendment 2/2 was
considered in Madras case, Rule 9(3) of the Madras
amendment was at issue. The referring Judge, Mr.
Justice Ganapatia Pillai, was of the View that refusal
to accept service had the same effect as refusal of
such notice when tendered personally, One of the
reasons which he put forth in support of his view was,
that if such a contention was not to be accepted,
then rule 9(3) (inserted by the Madras amendment)
would be rendered nugatory. However, the Division
Bench, to which the reference was made, did not
accept this approach.2/3 It held that refusal on the
part of the defendant to accept postal service (under
the Madras amendment) could not be considered
as equivalent to due service, so as to enable the court
to pass an ex-partc decree on the strength thereof.
The Division Bench specifically referred to the'
possibility that an indifferent or dishonest postman
might return the registered letter as "1'efused", with.
out going near the defendant and the court would
have no elfective sanction or control over him. C
2 -5 Observations in a Madras case.----The matter
was considered at some length in the above Madras
case and the court laid down the correct position in
paragraph 7 of the judgment as under.2/4 (Where
the court was concerned with the Madras amend-
ment).
"Service through registered post can be
taken as due service only when the party responds
to it or at least acknowledges receipt of the sum.
mons so served. There is sound reason behind
restricting the efficacy of postal service to a case
of acceptance of service alone. It cannot be
ruled out as impossible that an indifferent or dis.
honest postman niiglit, even Without going near
T'.
.. .~ <*m._, _
»_
1
5
the defendant return the registered letter as re-
fused. The court will then have no cjjhctivc
sanctimz or control over him. For one thing. the
penon who can complain against the failure of
the postman to deliver the letter being the cle-
fendant himself and ex corzcessi he would not be
aware of the misconduct of the postman; there
will be no other person who will be interested
in complaining to the court, Secondly , the Court
will have no effective supervision over the service
by the postman as it has over its own process ser-
vers. Undue dependence on the efficacy of postal
service might even encourage fraud in the service
of process. The rule makes it obligatory that
there should be an attempt at personal service
"before the procedure under R. 19 of O.V., C.P.C.
is adopted. lf the defendant does not accept
service by post, the Court will have no alternative
but to send summons through its process servers.
This was the view taken by Panchapakesa Ayyar
J. in 1958-2 Mad LJ 143; (AIR 1958 Mad 522),
following the earlier decision of Rajamannar
C1. in 1956-2 Mad LJ 86".
'2-6 Amendment in Karnataka.»~li1 the State of
Karnataka, the amendment was in the shape of a
proviso added to Order V. Rule 10, CPC. Rule 10
provides that service of the summons shall be made
by delivering or tendering a copy thereof, With an
endorsement duly signed etc. by the Judge.
Karnataka amendment (effected in 1967) 2/5
added the following proviso to Rule 10-
"Provided that, in any case the Court may
either on its own motion or on the application
of the plaintiff, either in the first instance or
when summons last issued is returned unservcd
direct the service of summons by registered post
pre-paid for acknowledgment, instead of the
mode of service laid down in this rule. The
postal acknowledgment purporting to contain
the signature of the defendant may be deemed to
be prima facie proof of sufficient service of the
summons on the defendant on the day on which
it purports to have been signed by him. If the
I ----5ll l. uv ;\'; ,lu--,iit'e/')3
postal cover is returned unserved, any endorse-
ment purporting to have been made thereon by
the delivery peon or either an employee or officer
of the Postal Department shall be prima facie
evidence of the statements contained therein."
2-7 Rajast/um anzenclnze/zt.--ln Rajasthan, a
proviso was added to Order 5, Rule 10, in the follow-
ing terms, in 1954;
"Provided that in any case the Court may
in its discretion send the summons to the dc-
fcndant by registered post in addition to the
mode of service laid down in this ru1e, An
acknowledgment purporting to be signed by the
defendant or an endorsement by postal servant
that the defendant refused to take the delivery
may be deemed by the Court issuing the summons
to be prima facie proof of service."2/6
Of course, these amendments lost their utility
after the insertion of Orde 5, rule 19A by the Code
of Civil Procedure (Amendment) Act, 1976 (a Cen-
tral Act).
2 -8 Order V. Rule 20A.--As mentioned above
in Order V. Rule 20A was inserted in the Code' in
1956 by a Central Act (amending the Code), giving
LL discretion to the court to order service of summons
by post. The rule also did not make service by re-
gistered post mandatory, but left it to the discretion
of the Court. Such service was to be resorted to,
when, for any reason whatsoever, the summons was
returned un-served.
2-9 Effect' of pre-1976 amemz'ntent.-it is un-
portaut to repeat that in none of the amendments
made before 1976 (locally or other wise) regarding
service by registered post of summons issued by the
court, there was any mandatory provision directing
the court to declare that the summons (issuedby re-
gistered post and received back with an endorsement
of refusal) had been duly served on the defendant.
Even Rule 20A (now deleted in 1976, as a consequen-
tial amendment) did not make such a provision. It
was the 1976 amendment which created such a
position 2/8.
CHAPTER III
THE ANIENDNIENT OF 1976
3-1 Law Commission recommendarioi2.e--'F218
provision in Order V, Rule 19A came into the Code
as a result of the amendment Act of 1976 with
eflect from February 1, 1977. On a very iingortant
point, however, the amendment made in l976
departs from the recommendation nude by the
Law Commission of India in its Report on the
subject.
Insertion of the provision regarding service of
summons by registered post was recommended by
the Law Commission in its 54th Report on the Code
of Civil Procedure (after a consideration of the
recommendations made in the earlier reports of the
Commission, being the 14th and 27th reports).
But, what the Law Commission recommended in
its 27th report, pages 46 and 47, were draft amend-
ments on the following lines ;--
"19A. (1) The Court shall in addition to and
simultaneously with the issue of summons
for service in the manner provided in rules 9
to 19, also direct the summons to be served
by registered post addressed to the defendant
or his agent empowered to accept the service
at the place where the defendant or his agent
ordinarily resides or carries on business or
personally works for gain ;
Provided that nothing in this sub-rule
shall require the Court to issue a summons
for service by registered post, where, in the
circumstances of the case, the Court regards
it as unnecessary.
(2) When an acknowledgment purporting
to be signed by the defendant or the agent or
an endorsement purporting to be made by a
postal employee that the defendant or the
agent refused to take delivery has been
received, the Court issuing the summons may
declare that there has been valid service."
3 '2 The Bill of l974.----The above recommenda-
tion in the 27th report of the Law Commission was
reiterated in the 54th Report3/1 page 124, para
5 -7 (February 1973). The Code of Civil Proce-
dure (Amendment) Bill, 1974 was introduced in the
Parliament in April l974. The Bill proposeti
insertion of rule 19A on the same lines as those
recommended by the Law Commission. The
amendment Bill of 1974 did not make presumption
of service nza;za';1;'o.¢-y, because it had followed the
1.:-commendation made by the Law Commission of
India, which nad propose; to give a discretion to
the court. Clause 53, sub--clause (iv) of the Bill
was thus explained in the Notes on clauses appended
with the Statement of Objects and Reasons;---
"New rule 19A is being inserted to provide
for the simultaneous issue of summons for
service in the ordinary manner and by post."
3-3 Joint Committee Repor.r.~When the Joint
Committee examined the Bill, its comment was as
under ;
"Clause 55(iii)--The Committee are of the
view that in order to establish that the
summons has been duly served on the defen-
dant, the simultaneous issue of summons for
service by post should be done by registered
post acknowlel gment due. Sub-rule(l) of
proposed new rule 19A has been amended
accordingly"--~'3.0. R. (Gazette of India,
1-4-76, Pt. III, S. 2, Ext., p. 804/12) (Ref.
The AIR Manual, 5th edition, p. 442).
"Clause 55(iv)---The Committee also feel
that in the case of issue of summons for
service by registered post, if the defend-
dant refuses to take delivery of the
summons, when tendered to him, or the
fact that the acknowledgment has been
lost or mislaid or has bot been received
back by the court for any other reason
within thirty days from the date of issue
of summons, the Court should be autho-
rised to draw a presumption that the
summons had been duly served on the
defendant. Sub-rule (2) of the proposed
new rule 19A has been amended accord-
ingly." J.C.R. (Gazette of India, 1-4-76,
Pt. II, S.2., Ext., P. B. 04/12) (Ref. The
AIR Manual, 5th edition, p. 442).
On a proper reading oi' the recommendation of
the Joint Coininittee, it appears that the intention
uas n1eicl;' to the court at power, rather than
impose on it .. t.'..,,r, to declare the )ervice to be
~<u~a.«.~
efi'ectiu:, in the situations dealt within rule l9A
as proposed by the Joint Committee.
3-4 Bill as /'cp0rIed.----But the actual Bill, as
annexed to the Report of the Committee. made
such 2. declaration mandatory.
The Bill annexed to that Report further con-
tained an additional proviso, clarifying that the
above declaration shall be made, notwithstanding
the fact that the acknowledgment, having been lost
or mislaid or for any other reason has not been
received by the court within 30 days from the date
of issue of the summons. The Bill, as reported by
the Joint Committee, also made certain other minor
changes, which are not material for the present
purpose.
3 -5 Case Law In Order V. Rule l9A.----To revert
to the amendment 3/3 as effected in 1976 by intro-
ducing Order V, Rule 19A, Civil Procedure Code.
it is enough to state that the court must now draw
the presumption. The High Court of Orissa 3'3
has held that once service under Order V, Rulel9A(2)
is made on the defendant. it shall be deemed to be
sufficient and it is not necessary to prove personal
service. In other words, though a summons for
personal service has to be issued (as provided by
the rule), it is not necessary that the service by the
personal mode made should have been successful.
3 -6 Copy of pIaint.------The Calcutta High Court is
of the view that a notice served by registered post
A.D. should be accompanied by a concise statement
of the plaint, if such notice is to be treated as
summons}/4.
CHAPTER IV
HARDSHIP RESULTING FROM THE PRESENT LAW
4 -1 Hardship resultingfrom present provision.---
Frcmia study of the case law on the Subject, it appears
that serious hardship has been caused, in practic-;-, by
reasdn of the mandatory and categorical provision
in Order'V, Rule 19A, which requires the court to
declare the summons as having been duly served, in
the situation mentioned in that rule. The case law
on this point, collected as result of a sample survey.
will be set out presentlyxl/1 Broadly speaking, the
problem has arisen in cases where the registered cover
containing the summons has come back with the endorse-
ment of "refusal". An ex-parte dune is _rts:uZ
in such a case on the strength of the legal assumption.
(i) that the postman did actually tender the envelope
and (ii) that the addressee did refuse to accept it.
Later, the party (which is stated to have refused to
receive the registered letter), applies to the ccvrt to
set aside the ex-parte decree, and often dtes succeed
in proving, to the full satisfaction of the court, that
the cover had not actually been attempted to be
delivered. It is obvious, that if the court is directed
to make a declaration of proper service itt every case,
irrespective of the peculiarities of the case, on the basis
of an hardship may arise and injustice may be
occasioned.
4 -2 _ Some selected cases.--lt will be convenient
to refer now to some of the comparatively rcccnt
cases, illustrative of the possibility of hardship,
referred to above.4/2
4-3 A Gauhati case.--The first case to be noted
is from Gauhati!/3 In this case, the summons had
been stated to have been refused by the defendant.
The postal peon deposed that he had tendered the
envelope which was refused by the defendant (add-
ressee). An ex-parte decree for ejectment
was passed. The defendant, in the application
to set aside the ex-parte decree, maintained that no
summonswas received by him, either by post or
otherwise.' and added that during the relevant time,
he was away from Assam and was living in
Bihar, at his permanent home. in order to
attend to his ill father. The trial court, dealing with
this application. found that the summons
was not duly served and set aside the ex-parte decree,
Revision against the trial court's judgment was
dismissed by the High Court. Incidentally, in this
case, th.c-re was a controversy as to whether
the original plaintiff was bound to pray to the
court for the opening of the envelope received
back through post and to adduce evidence to the
effect that the summons, as sent, actually related
to the o"-riginal Si!'-.llL itself'. This not having been
done, the High Court held that Order V, Rule 17%
v
(2) had not been completely compiled with. -' '
4-4 A case from Karnataka.----A Karnatazil
case,4/4 though it seems to have arisen before"t
amendment of 1976, is also worth noting. The case
related to a suit for the recovtry of money. An
ex-parte decree was passed on the basis of a summons
sent by post under V, Rule 10 of the Code (as
amended in Mysore), which permitted service
by registered post in certain circumstances.4/5
4 -5 A case from Punjab and Haryana.--A
case form Punjab ahd Haryana4/6 is also relevant;
the mode of service ordered by the court having
been by post. In this case, the husband had
obtained against the wife an ex-parte decree for
jusdicial separation under section 10 of the Hindu
Marriage Act, 1955 on the basis of a summons
sent by registered post and stated to have been
refused by the wife. The wife moved to set
aside the ex-parte decree. The trial court dismissed
the wife's application to set aside the decree passed
ex-parte. The trial court held that as the wife
refused to accept the summons (which seems to have
been sent through post). she had been duly served
by substituted service, by the publication
of a notice in the newspapers. On appeal to the
High Court, 3 Single judge took the View that at
times, a party can persuade a postman to make a
false report (about refusal etc.). As regards
substituted service, insertion of the notice of the
date of hearing in an Urdu newspaper (as was done
in this case) under Order V, Rule 20, could be of no
avail, as young Hindu ladies did not read Urdu
newspapers. On an appeal under the letters patent,
the appellate bench agreed with the single judge of
the High Court, and expressed itself as under :--
"Once for valid reason, report of thq
postman is not considered reliable and is
ruled out of consideration, then it would
tantamount that there had not been any
attempt to effect personal service on the
,.._----........-__. _
respondent. In the absence of an eflort on
the part of the matrimonial court to effect personal service of the petition upon the respondent wife, the substituted service would be of no avail, more so in view of the reasons given by the learned single Judge."
4-6 A case from Rqmst/1an.---In a Rajasthan case, 4/7 the question arose in a pr-3-ceecling under the Hindu Marriage Act, l955. The husband had sought divorce on the ground of adultery of the wife. The summons (notice) Vas rrzzeivcd unnerved. The court then passed an order for service afresh, and also ordered that another set of notices be sent by registered post to the wife. The notices sent by registered post were returned with the report "re fused". The High Court then Ordered that the service was sulficient and, after recording evidence, passed an ex parte decree for divorce. The wife petitioned to set aside the ex-parts decree, alleging that the summons had not been served upon her and that the question of refusal of summons, sent at her Rattangarh address, did not arise, because at that time, she was at Delhi with her father"; sister, After recording evidence and arguments with reference to the above point, the Court held that the summons had not been proved to have been duly served, In the instant case, the postal employee was not exa- mined to find out whether either the wife or her agent, had refused to receive the envelope containing the notice sent by registered post. There was some suggestion that the refusal was by the father, but obviously, the father was not the wife's "agent". Hence the court held that the ex-parte decree should be set aside.
4 -7 A casefrom Mad/iya Pradesh.----In a Madhya Pradesh case, 4/3 an ex-parte decree of divorce passed against the wife was sought to be set aside. It appears that there was some dispute as to whether the Wife, who had moved to set aside the ex-parte decree, had refused to receive service by post at all. The High Court found that, apart from her allegation that she never refused to accept the envelope, there was the additional fact that even if ,she had actually refused to accept service, it was only after the expiry of the date of hearing. That being so, it could not be said that there was any service of the summons upon her, Hence the ex parte decree was set aside.
4-8 A111/la's riow.-----It would be desirable to point out that the editor of the fourteenth edition of Mulla's Code of Civil Procedure 4/9 has noticed the hardship resulting from the mandatory presump-
tion in Order 5, Rule 19A, This is the comn:n§tiin--_tI,i.v fourteenth edition:--- *'- A 47' ~. 5'! "Under this sub-rule, a simple endorsa,1;ent,;,? a postal employee that registered packet was te L- dered to the defendant or his agent but was re- fused is made sufficient evidence of service. FIJI':
ther, if the summons has been properly addiressqi and sent by registered post A.D. the Court mutt make the declaration that the dependant has been served although the acknowledgment has been lost or mislaid or has not been received within 30 days from the date of the issue of the sum-
mons. This part of the sub-rule is drastic for, if the postal employee makes a wrong endorse- ment, the onus of proving the negative that he was not served would be on the defendant. No report of service by the postal employee is pro- vided for as it is done in the sub-rule l7".
(Emphasis added) 4-9 Bombay and Madras amendments.---It would appear that /JI'€.S'.'ll')'lClbI y because of the hardship felt by reason of the mandatory provision in Order V, Rule 19A, the Bombay and Madras High Courts have made certain amendments as under;-----4/ 10 "(Bombay)---In Order V, in sub-rule(1) of Rule l9-A:----
(i) for the word "shall" the word "may" be substituted 2
(ii) the proviso shall be deleted (w.e.f. 1-10-1983) (Madras)----In Rule 19A, as introduced by the Amendment Act 104 of 1976, the word "shall"
in sub-rule (2) occurring between the words "the Court issuing the summons" and "declare that the summons had been.. . " be substituted by the word "may" and the proviso to sub-rule (2) shall stand repealed, (Vide R.O.C. N . 6454/77 (2-F) S.R.C. (43/80) dated 5-12-1980)."
4-10 Ex parte decree in matrimonial cases.-_. Incidentally, while dealing with the question of service by registered post. It may be proper to mention that there is a conflict of decisions on the question whether an ex parte decree passed in a matrimonial case, can be set aside by applying the provisions of Order 9, Rule 13 of the Code of Civil Procedure, Most of the High Courts have answered the question in the aflirmative.4/11 However. the ruling of a single Judge in a Gauhati case has answered the question in the negatives/I2 It appears that in a Supreme Court case, it W8 V:
assumed that Order 9, Rule 13, CPC will am'; Bu' l ii».-»m.. . - » ..'..n,--,-i=mw,-»- ».w---
arose in that case because of an appeal having been filed. Once an appeal has been pre- ferred against an ex parte decree, Order 9, Rule 13 eannot £tpply.4/13 ' The Mysore High Court has also applied the provisions of Order 9, Rule 13 to matrimonial pro- eeodimfi/14 ,.-
In a Karnataka case an ex parte decree obtained by the husband for divorce was sought to be set aside. The court held the application to be main- tainable, even though the husband had died. The High Court pointed out that if the right is denied to the wife, then her status would be seriously aifected and her property rights would also be seriously afi'ected.4/15 an...
CHAPTER V DEFENDANT RESIDING OUTSIDE JURISDICTION 5-*1 Question of defendant residing outside the jilrimfotion of the Court issuing summons.----One of the matters of details which can be conveniently dealt with, relates to the situation of the defendant resid- ing outside the jurisdiction of the court issuing the summons. At present, Order V. Rule 21 of the "Code of Civil procedure makes a provision on the subject, as under :-
"2l. Service of summons where defendant re- resides within jurisdiction of another court.----A summons may be sent by the Court by which it is issued, whether within or without the State, either by one of its officers or by post to any Court (not being the High Court) having juris- diétion in the place where the defendant resides."
S-2 Uncertainty regarding places outside juris- dietion-Recomendations.--(a) The first point that arises is whether Order V, Rule 19A inserted in 1376'; (which provides for the simultaneous issue of suxgns for service by post in addition to personal g¢;viQ'e)5/1 can be invoked in a case where the defendant is outside jurisdiction, i.e. in the cascdeal within Order V Rule 21. Order V, Rule 21, directs that the court to which the summons is sentuirlbr Rule 21 (or Rule 22) shall proceed, as if the aims had been issued by such court, and this would seem to attract Order V, Rules 9 to 19. But on this parti- cular point a controversy can arise. It is desirable that an opportunity should be taken of making the ' position clear in this regard.
(b) Besides this, it will also be convenient if places near the border of a court's jurisdiction' are brought under rule 9 itself. If Court 'A' Wishes to serve a summons on a person in village 'X' which is in the jurisdiction of cuourt 'B' but is very near the border of court 'A,s' jurisdiction, it is more con- venient to allow service by the staff of Court 'A' than to leave the service to Court 'B'. '
(c) We, therefore, recommend that order V Rule 21 CPC should be suitably revised to incorporate the points mentioned in sub-paragraphs (h) and (b) of this paragraph.
CHAPTER VI RECOMMENDATIONS 6.1 Possible solution.--We are aware that it is not easy to evolve a perfect solution to the problem considered in this report and it is possible that any solution V which might be thought of by way of substitution for the present law, may create its own controversies. Nevertheless, we cannot overlook the fairly large number of reported cases in which injustice might_ have resulted by reason of a fraud practised with the help of a dislzonest postman or a lapse on the' part of an honest postman in tendering the article to a wrortgf person, but for the redress granted by the High, Charts, and there might be many more similar casesfwtich are not reported, because they did not reach the Higlz Court or did not raise any question of law. 1119 our view, it is desirable that an amendment should 'He' thought of. And it appears to us that the best course would be to substitute in place of the man- datory provision contained at present in Order 5 Rule 19A, atprovision that leaves it to the discretion of the Caarua declare whether refusal should be deemed to be 'anx,'ecjuivalent of service.
It is true that even if the court is given a discretion in the matter i.e. a discretion to draw or not to draw a presumption of service on the defendant, (on the basis of refusal to accept service as recorded by the postal employee), hardship may still arise. But one should not overlook the fact, that if the drawing of the presumption is mandatory (as at present). then the chances of hardship arising are magnified.
6.2 Recommendations.--In the light of what has been stated above, we recommend certain amend- ments in the Code of Civil Procedure, 1908 as de- tailed in the next few paragraphs.
6.3 -Order 5 Rule 19A to be amended.--0ur first recommendation is that order 5, Rule 19A of the code of Civil Procedure, 1908 should be amended by making the declaration regarding service by registered post discretionary, instead of its being mandatory as at present in order that a litigant is insulated against injustice on account of either a lapse or mistake or on account of a fraud practised with the help of a dis- honest postman motivated to make an endorsement regarding refusal. The rule, as so revised, will read as under ;--
nut 10 "l9A. (l) The court shall, in addition to and simultaneously with the issue of summons for service in the manner provided in Rules 9 to 19, also direct the summons to be served registered post addressed to the defendant or his agent empowered to accept service at the phpe where the defendant or his agent ordinarily resides or carries on business or personally works for gain;
Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances ~ of the case, the Court regards it as unnecessary.
(2) When an acknowledgement purporting to be signed by the defendant or the agent or an endorsement purporting to be made by a postal employee that the defendants or the ageI1t&«S1;e-
fused to take delivery has been received, Court issuing the summons may declare that there has been valid service, bearing in mind the possibility of fraud or mistake on the part of the postman who might have tendered the article to a wrong person whilst in the making of the endorse- ment regarding refusal. "
6 .4 Order 5 Rule 21 to be amended.--0nr second recommendation is that for Order 5, Rule zl, of the Code, a revised rule as is being indicated hag- after for the reasons specified in para 5 -2, of Chapter V, namely :-- Uncertainty regarding places outside iurisdictz'on--Recommendations.--
(a) The first point that arises is whether Order 5, Rule 19A inserted in 1976 (which pro-
vides for the simultaneous issue of summons for service by post in addition to personal service') can be invoked in a case where the defendant is outside jurisdiction, i.e. in the case dealt within Order 5 Rule 21. Order 5, Rule 21, directs that the court to which the summons is sent under Rule 21 (or Rule 22) shall proceed, as if the sum. mons had been issued by such court, and this would seem to attract Order 5. Rules 9 to 19, But on this particular point a controversy can arise. It is desirable that an opportunity shodd be taken of making the position clear in this re» gard.
an-...
We ~..........._.._.- --~.--_.------ - -
.4
(b) Besides this, it will also be convenient if places near the border of court 's jurisdiction are brought under Rule 9 itself. If Court 'A' wishes to serve a summons on a person in village 'X' which is in the jurisdiction of Court 'B' but is very near the borders of Court 'A's jurisdiction, it is more convenient to allow service by the staff of Court 'A' than to leave the service to Court 'is'.
j (c) We, therefore, recommend that Order 5 Rule 21 CPC should be suitably revised to in- corporate the points mentioned in sub-paragraphs
(a) and (b) of this paragraph.
Revised Order 5, Rule 2l as is being recommended
21. Service of summons when defendant resides within the jurisdiction of another court. If the de- fendant does not reside within the jurisdiction of the court in which the suit is instituted and has no agent residing within that jurisdiction who is empowered to accept the service of the summons, but resides or has such an agent within the jurisdiction of another court, whether within or without the State, the pro- visions of Rule 19A of this Order shall, as far as may be, apply, subject to the modification that the sum- mons intended to be served by an officer of court may _be sent. 'by the court by which it is issued, to the 'court within whose jurisdiction the defendant resides or has such an agent and the court to which 11 it is so sent shall then proceed as provided in Rule 23 of this Order.
Provided that where the defendant resides or has such an agent within the State at a place not exceeding twenty-five kilometres from the place where the'C'ourt issuing the summons is situated, or at a place within ten kilometres of the outer limits of the jurisdiction of the Court, the sumons may, instead of following the procedure provided in this rule, be delivered or sent by the court issuing it to the proper ofliicer, to be served by him or one of his subordinates in the manner laid down in Rules 9 to 19 (both inclusive) of this Order.
We recommend accordingly.
(M. P. THAKKAR) CHAIRMAN (Y. V. ANJANEYULU) MEMBER (P. M. BAKSI-II) MEMBER (MAHESH CHANDRA) MEMBER (G.V.G. KRISHNAMURTY) MEMBER SECRETARY New Delhi, Dated the April 19, 1991.
w-.-mm--.-., NOTE AND REFERENCES Chapter 11 2/1.
2/2.
2/3.
2/4.
2/5.
2/6.
2/7.
2/8.
Paragraph 2 -2, supra.
Paragraph 2-3, supra.
Pichai Ammal v. Vellayya Thevar, AIR 1963 Madras 198 (DB) (Ramachandra Iyer CJ and Anantanarayanan J).
Pichai Ammal v. Vellayya Thevar, AIR 1963 Madras 198, 200 para 7 (Division Bench).
Cf. para 4 '4, infra.
Similar amendment was made by Patna High Court.
Paragraph 2-2, supra.
Chapter III, infra.
Chapter III 3/1.
3/2.
3/3.
3/4.
Law Commission of India, 54th Report, Page 124, para 5 -7, (February 1973).
For the text of Order 5 rule l9A, see 1<-4', supra.
Samir Snigdha Chandra v. Pranaya Bhushan Chandra, AIR 1989 Orissa 185.
Dr. Madhusudan Poddar v. Arabinda Pod- dar, AIR 1978 Cal 195.
para Chapter IV 4/1.
4/2.
4/3.
Paragraph 4 -2, infra.
Paragraph 4 -1, supra.
Gopal Ch. Kalita v. Chiddi Sau, AIR 1982 Gauhati 61, 62, paragraph 4 (S.M. Ali J).
MG'IPF---514 Law & Justice/93-23-3-94--300.
B. Padmavathi Rai v. Parvathiamma, AIR 4/4.
1976 Karnataka 97 (K. Jagnnatha Shetty J).
4/5. Order V, Rule 10 amended in Mysore (later Karnataka), Cf. Paragraph 2-6, supra.
4/6. Mangat Rai v. Shanti Devi, (1983) HLR 437, 438 paragraph 4 (Punjab & Haryana) (Sandhawalia CJ and Tewatia J) .
4/7. Chandrakala v. Banshidhar, (1984) HLR 225, 233, Para 18 (Raj) (Dwarka Prasad J).
4/8. Shakuntala v. Devi Prasad Sharma, (1984) HLR 358. 359 (MP).
4/9. Mulla, CPC (Fourteenth Edition revised by J. M. Shelat), (1984), Vol. 2, page 954.
4/10. s. K. Mukherjee, code of Civil Procedure, Vol.1, (1987), page 990. ' 3 4/ll. Dr. Mithilesh Kumar Srivastava v. Saroj Kumari Srivastava, (1987) IHLR 378 (Allahabad) (reviews case law).
4/l2. Anjan Kumar Kataki v. Meenakshi Sarma, AIR 1985 Gauhati 44.
4/13. Rani Choudhury v. Lt. Col Surajjit Choudhury, AIR 1982 SC 1397.
4/14. Tirukappa v. Kamlamma, AIR 1966 Mysore 1.
4/15. Iravva v. Sivappa, ([987) 2 HLR 312, 317, ' 318, paras 12 to 14, (Karnataka).
Chapter V 5/ 1. Chapter III, supra.
l