Order V Rule 17 CPC| Service Of Suit Summons Through Affixture To Defendants Is Not A Directory Procedure But Mandatory: Karnataka HC
The Karnataka High Court has held that service of suit summons through affixture under Order V Rule 17 of the CPC is not a directory procedure, but a mandatory procedure.
The Court allowed an appeal under Order 43 Rule 1(d) of the CPC, setting aside the ex-parte decree passed by the Trial Court. The Bench held that the Trial Court erred in dismissing the Appellant’s application under Order 9 Rule 13 read with Section 151 of the CPC by treating Order V Rule 17 of the CPC as a directory provision rather than a mandatory one.
A Single Bench of Justice H.P. Sandesh stated “But the wordings used 'shall' and when the word used is 'shall' the very reasoning given by the trial Court that it is directory not mandatory is a wrong notion of the trial Court and had lost sight of the very proviso of Order V Rule 17 and committed an error in coming to the conclusion that it was only a directory and hence, the very contention of the appellant that not complied with mandatory provisions of Order V Rule 17 of C.P.C, there is a true. The very contention of the respondent that the proviso of Order V Rule 20 is very clear with regard to amendment is concerned and to take the notice and purposefully he avoided service of notice and hence, Order V Rule 20 of C.P.C is pressed into service cannot be accepted and hence it requires interference by this Court and the trial Court committed an error in dismissing the petition filed under Order 9 Rule 13 r/w Section 151 of C.P.C and hence, I answer the above points in affirmative.”
Advocate Abhishek Huddar appeared for the Appellant, while Advocate Udita Ramesh represented the Respondent.
Summons were initially issued against the Appellant, but returned unserved with the remark "defendant not in station." Subsequently, notice through Registered Post Acknowledgment Due (RPAD) was also returned unserved with the same endorsement. The Trial Court then allowed for substituted service under Order V Rule 20 of the CPC. Notices were issued through paper publication, and the Appellant was placed ex-parte, leading to the decree.
The Appellant filed a miscellaneous petition in 2022, challenging the ex-parte decree. He argued that the mandatory requirement under Order V Rule 17 of the CPC, which requires affixture of summons on the defendant's residence, was not complied with. The Trial Court dismissed the petition.
The High Court stated, “The provisions of Order V Rule 17 of C.P.C will have to be strictly construed. The propositions cannot be stretched to the extent of holding that one should be hyper technical in considering Order V Rule 17 of C.P.C. If on a careful perusal of the return, verified by the process server sworn to before the authority competent to administer oath, on information one can say that all the contentions are complied with, but would be wrong to say that service is bad simply returning that it is not exactly in the form prescribed affixed in Code of Civil Procedure and same is discussed in paragraph Nos.15 and 19 of the judgment.”
The Bench noted that in this case, it was not the case of refusal, but the Appellant was not present at the time when the postman went to make service. “When he was not in station and no such information was also given and nothing is mentioned that an intimation was delivered and when such being the case and when no such intimation is given, question of it has come to the notice of appellant/defendant does not arise. Without any notice, he was placed ex-parte and invoked Order V Rule 20 of C.P.C.” the Court explained.
Accordingly, the High Court allowed 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
