Law: Criminal Procedure Code (VII of 1908)

Section: Order V Rule 15, order V Rule 20

REMARKS

The suit filed by the plaintiffs for recovery of damages was decreed ex- parte and the appellants herein moved an application for setting aside of said decree on the ground that their personal service was not effected during trial nor their correct address was mentioned in the plaint or summons. The learned trial Court dismissed such application where-against appeal in hand was filed…. Held
The defendants should have been served in person or through their agent empowered to receive/accept the service. In case the defendant was found not present on the given address, nor there was any authorized agent, then service could be made through male member of the defendant`s family, residing at the same address. Once the proper service is effected upon defendant then the Court gets jurisdiction to dispose of the matter.
The basic object of service on defendant is to enable him to resist the claim, if so desired. In safe administration of justice the Process Servers play a pivotal role, as the reports/affidavits sworn by them on the back of notices become a source of make or break for the cases. Therefore, they should take the pain and gather the exact information, inquire about the parties and in case of incomplete service, they are bound to follow the matter more than once in order to obtain proper service of parties and should not wait for the fixed date of hearing and shall take the matter earlier much before the date fixed, so that proper and personal service of the parties could be obtained within time. The process servers are also required to note-down all these efforts in their reports with utmost care and professional sincerity.
It is also the responsibility of Presiding Officers to look into the service effected by the Process Server and if necessary summon the concerned officials in order to inquire about the authenticity and correctness of effected service and should keep vigilance on the concerned officials and their reports on the back of notices. In the instant case, the report of the Process Server reveals that he had personally served the process upon each of the defendant, however, the signature of the recipient on each summons is identical, which itself negates the version of the process server and, as such, the provisions of Order-5 Rule-15, C.P.C have been violated. Similarly, substituted service has not been done in compliance to the provisions of Order-5 Rule-20 of C.P.C nor, serving official has been examined. As no personal service effected in the instant matter, nor procedure provided for service under the law has been followed, therefore, ex parte proceedings later on culminated into ex parte decree have not been passed in line with law.

Summary of the Judgment:Service Defect

The appellants (defendants) were proceeded ex-parte in a defamation damages suit filed by the respondent (plaintiff) due to their non-appearance. Only defendant No.1 contested the suit and got the claim dismissed against him, but an ex-parte decree was passed against the remaining appellants.

The appellants later applied to set aside the ex-parte decree (after around 3 years), claiming they were never properly served with court summons. The trial court dismissed their application, leading to this appeal.