Mere Formality Of Obtaining Witnesses’ Sign & Affixing Notice On Outer Door Or Conspicuous Part Of House Not Sufficient For Service Of Notice: Allahabad HC

The Allahabad High Court held that mere formality of obtaining signature of witnesses and affixing notice on the outer door or some conspicuous part of the house in which the person ordinarily resides are not sufficient to complete the valid formality of service of notice.

The Court held thus in a first appeal filed against the order of the Additional District and Sessions Judge who rejected the restoration application moved under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code (CPC).

A Single Bench of Justice Dinesh Pathak observed, “Apart from that, mere formality of obtaining the signature of witnesses and affixing notice on the outer door or some other conspicuous part of the house in which defendant ordinarily resides are not sufficient to complete the valid formality of service of notice. Legislation is never intended to avoid or bypass the personal service upon the defendant. Order 5 Rule 12 denotes that endeavour should be made to serve the defendant personally, unless he has an agent empowered to accept service. In furtherance thereto, Order 5 Rule 15 C.P.C. denotes that, where neither the defendant is available nor his authorized agent to be served, in that condition notice has been directed to be served upon any adult member of the family, whether male or female, who is residing with defendant. … In the given circumstances of the present matter, Rule 15 and Rule 17 of Order 5 are relevant.”

The Bench said that in continuation of the procedure for service of notice, Rule 17 of Order 5 enunciates that in the eventuality, where none of three persons are available to receive notice viz. defendant or his authorized agent or his adult family member, duty has been casted upon the Process Server to affix the summons on the outer door of the house or some other conspicuous part of the house in which defendant ordinarily resides or carries on business or personally work for gain, and, thereafter, Process Server shall return the original copy of the notice to the court from which it was issued.

Senior Advocate Rahul Sripat appeared for the appellant while Advocate Virendra Singh appeared for the respondent.

In this case, the plaintiff i.e., the respondent had filed a suit for permanent prohibitory injunction against the defendant i.e., the appellant to restrain him not to interfere in the peaceful possession of the plaintiff over the property in question and not to dismantle the construction exists over there. The plaintiff came with the case that to secure the money borrowed from the defendant, document of understanding was executed in 1994 and at later stage, the plaintiff returned all the money as borrowed from the defendant, however, the defendant was trying to dispossess the plaintiff from the property in question. During pendency of the suit, the plaintiff moved an amendment application seeking additional relief of cancellation of the registered sale deed and to declare it as null and void.

Aforesaid amendment application was allowed and the suit was proceeded ex-parte against the defendant. In the meantime, case was transferred to the Court of Additional District Judge and the record was received in the transferee court. In absence of the defendant, the suit was ex-parte decreed by judgment and decree in 2009. When the defendant came to know this fact, he moved a restoration application under Order IX Rule 13 read with Section 151 CPC. Having considered the full knowledge of pendency of suit to the defendant through his wife, the Trial Court vide order under challenge, dismissed the restoration application in 2021.

The High Court after hearing the contentions of the counsel noted, “In the instant matter, I did not find any endeavour made by the Court Amin (Process Server) to discharge his duty properly as entrusted upon him under Rule 12, 15 and 17 of Order 5. A simple statement of wife of defendant-appellant on the first date of visit of the Process Server, wherein wife has refused to accept the notice and shown unavailability of her husband (defendant), has been treated to be sufficient by learned trial court for the purpose of effective service of notice upon the defendant. No discussion has been made by learned trial court as to what "due and reasonable diligence" has been exercised/performed by the Process Server (Court Amin) before affixing the notice on the conspicuous place of the house.”

The Court further said that the Trial Court failed to consider the relevant provisions for the effective service of notice upon defendant-appellant as enunciated under Order 5 Rule 12, 15, 17 and 19 C.P.C. and thus, service of notice upon the defendant no.2 cannot be treated to be sufficient for the purposes of deciding the suit ex-parte or for the purposes deciding the delay in filing the restoration application against the ex-parte decree.

“In the matter in hand cause shown by the defendant-appellant for delay in filing the restoration application is quite sufficient and convincing. Therefore, in the light of the prayer made by defendant-appellant for granting benefit under Order 5 of the Limitation Act, defendant-appellant cannot be forced to file separate formal application for the condonation of delay under Section 5 of the Limitation Act. As such, in the light of the facts as discussed above, case of the defendant-appellant is liable to be treated within prescribed period of limitation from the date of knowledge i.e. 09.09.2011, under the provisions of law as enunciated under Article 123 of the Limitation Act”, added the Court.

The Court also observed that the Trial Court illegally denied to extend the benefit under Section 5 of the Limitation Act and rejected the restoration application. It said that the delay in filing the restoration application is liable to be condoned and the restoration application is liable to be allowed as well and that the order under challenge is illegal, unwarranted under the law and infirm which is liable to be quashed.

Accordingly, the High Court directed the appellant/defendant to submit his written statement along with the relevant documents and listed the case on January 22, 2024.

Cause Title- Rakesh Kumar Jain v. Zulfkar Ali (Neutral Citation: 2023:AHC:243097)

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