Summons By Registered Post AD Can't Be Served Directly On Defendant Residing Outside Court's Jurisdiction: Punjab & Haryana HC

"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 have 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 Court was dealing with a petition filed under Article 227 of the Constitution, challenging the order passed by the courts below, dismissing the applications filed by Defendant (Appellant herein) for setting aside the ex-parte judgment and decree passed against him in a suit for recovery.

The plaintiff-respondents had filed a suit for recovery against the defendant-petitioners. The trial court through an order issued notice to the defendants-petitioners on the filing of registered cover. Summons were issued via registered posts which returned with the refusal. Therefore, the ex-parte decree was issued.

Since acknowledgment due in the capacity of defendant-petitioner No.1 was not received, fresh notice was directed. Ultimately when none appeared in spite of several adjournments, the suit was decreed ex-parte.

As a result of this, the Bailiff of the Court of Patiala came for attachment of the residential house of defendant-petitioners and the defendant-petitioners came to know of the ex-parte decree passed by the Court and filed an application for setting aside the ex-parte judgment by pleading that they had not received the summons from the Court.

The Trial Court dismissed the application for setting aside the ex-parte judgment and decree. An appeal was also dismissed. Hence, this case.

As far as the issue of the summons being served properly is concerned, the court held that the defendant-petitioners were, residing outside the jurisdiction of the Court, and the summons were sent by registered post acknowledgment due. Court also held that in a situation when a defendant resides outside the jurisdiction of the Court the provisions of Order 5 Rule 21 shall not apply.

However, 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.

The court held that in case the defendant-petitioners were, residing within the jurisdiction of the Court the summons have to be delivered either to the proper officer or to one of his subordinates.

Thus, 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 has 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 acknowledgment 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.

It was held that Order 5 Rule 9(4) CPC does not cover registered post acknowledgment due.

Registered post acknowledgment due is specifically excluded in Order 5 Rule 9(4) CPC and, therefore, for service by registered post acknowledgment due on a defendant residing outside the jurisdiction of the Court, the provisions of Order 5 Rule 21 shall apply.

Moving further the court held that under Order 5 Rule 21 CPC summons ordered to be served by registered post acknowledgment due on a defendant who is residing outside the jurisdiction of the Court are liable to be sent to the Court having jurisdiction.

Order 5 Rule 21 CPC makes it clear such that summons ordered to be served by registered post acknowledgment due on a defendant residing outside the jurisdiction of the Court would have to be sent to the Court having jurisdiction where the defendant resides. Under Order 5 Rule 23 CPC, the Court to which the summons are sent under Rule 21 shall proceed as if it had been issued by such Court.

The court while setting aside the previous orders held that the order of the Trial Court was contrary to Order 5 Rules 9 and 21 CPC because summons by way of registered post acknowledgment due directly by the Court where the suit was instituted cannot be deemed to be proper service and the procedure adopted by law.