Chandigarh, March 24, 2021: While dealing with a revision petition impugning ex-parte orders of the Courts below, the Punjab and Haryana High Court has held that provisions of Order 5 of CPC make it clear that where the defendant resides outside the jurisdiction of the Court in which the suit is instituted and the Court directs that summons on such a defendant be served by registered post acknowledgement due, such summons has to be first sent to the Court having jurisdiction where the defendant resides and that Court would thereupon proceed to serve the defendant as if the summons were issued by that Court.
The Single Judge Bench of Justice Alka Sarin also asserted,
“Summons by registered post acknowledgement due cannot directly be sent by the Court where the suit is instituted to a defendant residing outside its jurisdiction.”
Brief facts of the matter are such that the plaintiff-respondents filed a suit for recovery against the defendant-petitioners. Vide order dated February 5, 2004, the Trial Court issued notice to the defendants-petitioners on the filing of registered cover. Summons were issued through registered post on February 6, 2004, for March 4, 2004, on which date the registered cover, sent to the second to fifth defendant-petitioners, was received back with the report of refusal and hence the petitioners were proceeded against ex-parte.
Since acknowledgement due qua the first defendant-petitioner was not received, hence fresh notice was directed, on which date the acknowledgement due was received back with a report of refusal and in such circumstances the Court, having been satisfied that the first defendant-petitioner could not be served through ordinary process, directed publication in the daily newspaper. Eventually, when none appeared in spite of several adjournments, the suit was decreed ex-parte.
Thereafter, an execution was filed at Moonak/Sunam, District Sangrur which was transferred to District Patiala as the defendant-petitioners were residents of Patiala. When the Court Bailiff for attachment of the residential house, that’s when the defendant-petitioners came to know of the decree passed by the Court at Moonak. The defendant-petitioners filed an application for setting aside the ex-parte judgment and decree, however, the Trial Court dismissed the application. Against this order, an appeal was preferred which was also dismissed. Aggrieved by the said two orders the present revision petition was filed.
The counsel for the defendant-petitioners argued while relying upon M/s Aar Kay Traders Vs. M/s Satish Electronics [HP HC] that as per the provisions of Order 5 and Rules 9(4) and 19 of Civil Procedure Code, the defendant-petitioners, who lived outside the territorial jurisdiction of the Court, could not be served by way registered post. It was further argued that neither the provisions of Order 5 Rule 17 CPC nor the provisions of Order 5 Rule 18 CPC were complied with in the present case. Also, the counsel contended that there was no circulation of the newspaper in the locality in which the publication was said to have been made. And, lastly, it was argued that all principles of natural justice were given a go-by and the defendant-petitioners was condemned unheard.
The counsel for the first plaintiff-respondent argued that the impugned decisions were right as the defendant-petitioners refused to accept the summons in spite of being duly served. Further, the counsel relied upon the Supreme Court in Parimal Vs. Veena @ Bharti to contend that once service is affected and then there is a presumption of service of a letter sent under registered cover and if it comes back with a postal endorsement that the addressee has refused to accept the same, though rebuttable, would be considered as duly served.
At the very outset, before proceeding to examine if the summons were properly served upon the defendant-petitioners, the Court noted that the defendant-petitioners were residing outside the jurisdiction of the Court where the suit was instituted and the summons was sent by registered post acknowledgement due.
After referring to Order 5 Rule 9A CPC, the Court opined that under this provision, the Court may in addition to the service of summons under Rule 9, on an application by the plaintiff, deliver summons to the plaintiff for serving on the defendant. Such summons, the Court stated, is to be served personally upon the defendant by the plaintiff or on his behalf. The Court also opined that the Rule makes no distinction between a defendant within or without the jurisdiction of the Court which issues the summons.
Further, upon perusal of Order 5, Rule 21 CPC, the Court observed that where a defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons have to be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court. Further, the summons can be sent by registered post acknowledgement due or by speed post or by approved courier service or by any other means of transmission of documents including fax, electronic mail service as provided by the rules made by the High Court, added the Court.
Additionally, the Court asserted that where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, the summons to such a defendant can be sent directly by the Court, where the suit is instituted, by speed post, approved courier service or by any other means of transmission of documents including fax, electronic mail service as provided by the rules made by the High Court.
“For service by such means on a defendant residing outside the jurisdiction of the Court, the provisions of Order 5 Rule 21 shall not apply. Registered post acknowledgement due is specifically excluded in Order 5 Rule 9(4) CPC and, therefore, for service by registered post acknowledgement due on a defendant residing outside the jurisdiction of the Court, the provisions of Order 5 Rule 21 shall apply”, adjudged the Court.
Coming to the factsheet of the present case, the Court opined that the defendants were residing outside the jurisdiction of the Court where the suit was filed and that being so, service sought to be effected upon them by way of registered post acknowledgement due directly, could not be deemed to be proper service and the procedure adopted by the Trial Court was contrary to that laid down in Order 5 Rules 9 and 21 CPC, adjudged Justice Sarin.
Hence, the revision petition was allowed.