Recently, the Bombay High Court suggested that courts can utilise “modern ways of service”, while ordering substituted service of summons.
Justice Mridula Bhatkar discussed the different modes of effecting substitute service of summons under Order 5 Rule 20 of the Code of Civil Procedure, and observed, “…in sub-rule (i) and (ii), the substituted service means fixing the copies of the summons on different place as mentioned in the Rule. However, the sub-rule(iii) gives further option that the summons can be served in such other manner as the Court thinks fit.
Thus, the manner which the Court opts for should be akin to the earlier mode of service, which is mentioned in the Rule. For this, the Court can take into account the modern ways of service which are available due to internet connection. It can be served also by courier or by email or by WhatsApp etc.”
The Court was hearing a petition challenging an order passed in November last year by the District Judge, Pune, setting aside an ex-parte order for want of proper service on the Defendant firm. The suit before the lower court was one for specific performance, filed by the petitioners.
The High Court now noted that the defendant firm could not be approached through service because the summons were served on the wrong address. While it opined that the defendant should have informed the court about the change in address, it nevertheless upheld the impugned order.
Examining the facts of the case, the Court emphasised on the necessity of viewing service of summons as more than just an empty formality. It further explained that once the Court is informed that the Defendant never really had “actual real knowledge” of the proceedings, the Court needs to “take realistic and just view and not to limit itself in the procedural wrangles”, even if the procedure had been complied with by the plaintiff.
It observed, “The service is neither an empty formality nor procedural ritual but the soul of the service is to have the knowledge of the proceedings to the defendant or the contesting party. Therefore, there may be a service laid down as per the procedure, however, still there is no communication of the proceedings to the other party and, therefore, the knowledge is absent. Thus, satisfaction based on instances of the compliance of the proceedings as a mere formality cannot be a correct approach to interpret the principle behind the service.”
The Court then confirmed the impugned order, subject to payment of cost of Rs.30,000. Noting that the defendant had filed the written statement, the Trial Court was directed to make an attempt to decide the suit before 31 December, 2018.