SCHOOL OF LAW, MUMBAI

A Research paper submitted on

SUBSTITUTED SERVICES

FOR SEMESTER V OF 2019-20, IN THE SUBJECT CIVIL PROCEDURE CODE

SUBMITTED TO:

Professor Shrikant Aithal

SUBMITTED BY:

Gopika Mundra

A034

BBA LLB (Hons.)

Third Year

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 TABLE OF CONTENTS

1. INTRODUCTION……………..………………………………………....3

2. MODES OF SERVICE SUMMONS.........................................................3

3. SUBSTITUTED SERVICES.....................................................................4

4. CASE ANALYSIS.....................................................................................5

5. CONCLUSION ……………………………………………………….....7

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INTRODUCTION
A summons is a legal document that is issued by a Court on a person involved in a legal
proceeding. When a legal action is taken against a person or when any person is required to
appear in the court as a witness in a court proceedings, to call upon such person and ensure
his presence on the given date of the proceedings, summons is served. If the summons is not
duly served then no action can be taken against the defendant. If defendant fails to attend
court after receiving summons, he will be ex-parte by the Court. Section 27 and Order V of
the Code of Civil Procedure, 1908 deal with ‘Service of Summons’ on the
defendant/Respondent. Order 16 deals with summoning and attendance of witnesses. This
research paper is only confined to service of summons in a Civil Proceedings. Order V of
CPC contains Rules 1 to 30. These provisions deal with issue and service of summons. Under
the Code of Civil Procedure, 1908, there are different modes of effecting service of summons
on defendant. It is needless to say that non-service of summons and notices in a civil suit
proceedings is a great hurdle for speedy disposal of a civil suit. There are several reasons for
non-service of summons to defendant in time. Furnishing correct address of the defendant in
the plaint would be helpful to avoid delay in service of summons. Recently, the Courts have
expanded the scope of service of summons through information technology. We often across
with the situations that in many civil cases, defendant takes plea that summons was not duly
served on him. Similarly, in general, court often use the method of substitute of service of
summons by way of paper publication.

MODES OF SERVICE SUMMONS

Summons may be defined as under “A written notification issued by a civil court requiring
that one must appear before the court in prescribed manner”
There are various modes of service summons like:
• Personal or Direct Service: Wherever it is practicable, service of summons should
be made on defendant in person. This is also called direct service so far as practicable
service should be made on the defendant in person. Service is made by delivering a
copy of summon to the person concerned or to his agent and by obtaining his
signature on the other copy.
Where the defendant is absent from his residence at the time when the service of
summons is sought to be effected on him at his residence and there is no likelihood of
his being found at the residence within a reasonable time and he has no agent
empowered to accept service of the summons on his behalf, service may be made on
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 any adult member or his family, whether male or female, but not a servant. [O. 5, R.
15].
• Service by affixing a copy of summons on defendant’s house without an order of
the court: When personal service is failed to serve to the summons than summons
may be served by service by affixation. Service by affixation can be made when (a)
Refusal by defendant to sign acknowledgement; (b) Failure of serving officer to find
defendant. The copy of summons should be actually affixed on the outer door or some
conspicuous part of the house where defendant resides, carries on business or
personally works for gain.
• Substituted Services: Where the court is satisfied that there is reason to believe that
the defendant is keeping out of the way for the purpose of avoiding service, or that for
any reason the summons cannot be served in the ordinary way, the court shall order
the summons to be served by affixing a copy thereof in some conspicuous place in the
court house and also upon some conspicuous part of the house (if any) in which the
defendant is known to have last resided or carried on business or personally worked
for gain, or in such other manner as the court thinks fit. Service may be ordered to be
effected by publication in a local daily newspaper. Service substituted by order of the
court shall be as effectual as if it had been made on the defendant personally. (O. 5, R.
20).
There are other services too but I will deal with substituted service in detail.

SUBSTITUTED SERVICE
If personal service of summons is not possible, service of summons can be made through
affixation of a copy of summons on outer door or some other eminent part of that house in
which defendant ordinarily resides or carries on business or works for gain.
(i) When Substituted Service be made
It can be made only in the following cases:
(a) When defendant is keeping out of the way for the purpose of avoiding summons, or
(b) Any other reason for which service of summons is not possible in ordinary way.

(ii) Manner of Substituted Service

Substituted service may be effective by the following ways;

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(a) Substituted service can be made by affixing copy of summons at some conspicuous part
of that house in which defendant is known to have last resided or carried on business or
personally worked for gain.
(b) Substituted service can be made through any electronic device of communication like
telegram, telephone, phonogram, telex, radio or television.
(c) Substituted service can be made through urgent mail service or public courier services.
(d) Substituted service can be made through beat of drum in that locality where defendant
resides.
(e) Substituted service can be made through publication in press.
(f) Substituted service can be made through any other manner or mode, which court thinks fit.

(iii) Effect
The substituted service shall be as effective, as if it had been made on the defendant
personally and the court may pass an ex-parte decree, on non appearance of defendant.

(iv) Time for defendant’s Appearance

In case of substituted service, it is necessary that court should fix time of appearance of
defendant and such time should not exceed fifteen days.

CASE ANALYSIS
It is the fundamental principle from the latin maxim actus curiae neminem gravabit that act of
court shall prejudice no man unless sanctioned by law. But, it is well-settled law that even in
ex parte cases; Court has to pass a reasoned order by discussing the pleadings and evidence of
the party.
In the case of Dr. Madhav Vishwanath Dawalbhakta & ors. v. M/s. Bendale Brothers1,
the High Court of Bombay elaborately discussed the law pertaining to substituted service of
summons. While elucidating the Law the Court noted that while allowing substituted service,
the Court should be satisfied that either the defendant is deliberately avoiding the service, or
that for any other reason, the summons cannot be served in ordinary way.
In view of the rule that substituted service can be made in such other manner that the Court
thinks fit, the Bombay High Court observed that under this Rule, the Court can take into

1
2018 SCC OnLine Bom 2652 : (2018) 6 Bom CR 619.

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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.
While making the aforesaid observation, the Court opined that 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 deeming fiction is created in law to
fill up the gap where the procedural law falls short. By accepting that the substituted
service is deemed to be a good service, then passing exparte decree is a correct legal step
taken by the Court as per the procedure.
Before ordering substitute service of summons or notice, the Court must satisfy the
requirements as per law. If any decree is obtained by fraud, such decree would be null and
void. Though substituted service is a sufficient service in ordinary circumstances, Courts
shall be careful to see that conditions enumerated in Order 5 Rule 20(1), CPC have been
strictly complied with before ordering substituted service.
In our Hon’ble Division Bench in Maganti Krishna Durga Vs. Maganti Anil Kumar2, it
was observed that Where the husband obtains a decree of divorce ex parte by practising
fraud, husband cannot take advantage of Section 15 of Hindu Marriage Act and remarry.
Similarly, ex parte decree against defendant has to be set aside, if he satisfies Court that
summons had not been duly served or he was prevented by sufficient cause from appearing
before Court when suit was called on for hearing However, Court shall not set aside said ex
parte decree on mere irregularity in service of summons or in a case where defendant had
notice of date of hearing and sufficient time to appear in Court Not permissible for Court to
allow said application in utter disregard of terms and conditions incorporated in second
proviso to Rule 13 of Order IX CPC. Before setting aside an ex parte decree, it is important to
note the limitation factor to set aside ex parte decree.
Need of making rules and regulations for service of summons and notices through
electronic means: - In this computer era, usage of mobiles and computers has been
increasing day by day. So many Apps are being introduced day by day and social media is
now become more powerful tool even for common people. Within fraction of seconds,

2
2015 (5) ALT 346 (D.B.).

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messages are being communicated among the people because of recent computer technology.
Sending messages by E-mail, WhatsApp, Telegram, Slack etc., became easy task to all age
groups.
The concept of E-courts has been praying vital role in judiciary and is making efforts for
computerization of all courts in India. Now, the Hon’ble Supreme Court expanded the scope
of electronic media in judiciary. But, information technology and notices is not being
properly used by all the courts in service of summons because the court system does not have
the facility to affect the service through electronic mode.
Summons/Notices through E-mail:-The Hon’ble Supreme Court of India, in Central
Electricity Regulatory Commission Vs. National Hydroelectric Power Corporation
Ltd.3, permitted the service of Notice by email along with the ordinary mode of serving
notice. In Ksl and Industries Ltd., Vs Mannalal Khandelwal and the State of
Maharashtra(Criminal Writ Petition No. 1228 of 2004), The Hon’ble Mumbai High Court
held that to avoid the delay in legal proceedings because of unserved summons must be
interrupted by using all the practical methods and services including emails. Summons
through e-mail is permitted in In Indian Bank Association & Ors vs Union Of India &
Anr4.
Summons though WhatsApp: - In Tata Sons Limited & Ors vs John Doe5, CS(COMM)
1601/2016, His Lordship Justice Rajiv Sahai Endlaw of the Hon’ble Delhi High Court
permitted the right to serve summons to the defendant via WhatsApp texts as well as by
emails to a defendant. In a recent case, Justice Surabhi Sharma Vats of the Delhi High Court
allowed a woman to serve the summons to her estranged husband who was living in Australia
via Whatsapp. Moreover, the court considered “double-tick” as valid delivery of summons.

CONCLUSION
As information technology is increasing day by day, it is time to enact the new legislation and
to frame detailed rules for service of summons, notice, documents through electronic mode
and that the training classes for the process servers must be organized to understand the law
and that they also must electronically record their attempts to serve papers using some kind of
GPS device, and keep those records in a database for at least ten years.

3
(2010) 10 SCC 280.
4
(2014) 5 SCC 590.
5
2017 SCC OnLine Del 8335.

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The procedural laws and the Courts in their rules and policies have laid down a proper
procedure and method for serving summons. In addition to the traditional methods the Courts
have now recognized WhatsApp as one. The Courts have found a completely new purpose of
WhatsApp. However, it is essentially important to understand that the electronic means, least
of all WhatsApp, are not going to replace the “regular models”. They are meant for those
exceptional cases where the Defendants are hiding and evading their appearance in Courts.