The primary mode of service of summons on the defendant through the proper officer of the court cannot be dispensed with, and modes of service enumerated in Order V Rule 9(3) are in addition to personal-primary service.

JUDGMENT

1. This appeal under Order XLIII (1) (d) of the Code of Civil Procedure, 1908 ("CPC" for short), questions the legality and correctness of the order dtd. 16/9/2021, by which the learned Judge, City Civil Court, Mumbai in exercise of jurisdiction under Order IX Rule 13 of the CPC, declined to set aside the exparte decree dtd. 11/6/2018, passed in Short Cause Suit No.925 of 2015, against the appellant-defendant.

2. Question, that falls for consideration is whether suit summons, issued by the City Civil Court, Mumbai, sought to be served through speed post, on the defendant who was residing outside the jurisdiction of City Civil Court, was valid and proper service.

3. Facts : Plaintiff-respondent instituted Short Cause Suit No.925 of 2015 in March, 2015, in the City Civil Court at Bombay, to seek decree in the sum of Rs.59,76,058.83 towards consideration for goods sold by him to the defendant.

4. On 15/4/2015, Board Department of City Civil Court, Bombay sent two speed post letters packets containing duplicate writ of summons, along with true copy of plaint to the appellant-defendant who was residing at Pune. On 6/5/2015, Board Department received back speed post letters packets with a remarks, "owner is not accepting hence returned". Whereupon Mr. J.R. Mhatre, working in the Board Department of City Civil Court, Bombay filed affidavit of service and tendered two speed post letters packets at Exh.A-1 and A-2. On 10/8/2015, learned Judge, upon perusing the affidavit of Mr. Mhatre and noticing that defendant was absent when the suit was called on for hearing, set down the suit on 13/10/2015 for hearing exparte, against the defendant. Thereafter, on 11/6/2018, the suit was decreed exparte against the appellant-defendant and the decree was drawn. Whereafter, plaintiff instituted the execution proceedings vide Application No.150 of 2018 and served the same on the defendant on 22/7/2019.

5. Noticing the exparte decree, appellant-defendant applied for certified copy of the judgment and decree on 18/12/2019 and thereafter moved an application under Order IX Rule 13, on 24/2/2020, for setting aside the decree on the ground that he was not 'duly served' with the suit summons.

6. Learned Trial Court vide order dtd. 16/9/2021, for more than one reason held that service of suit summons by speed post was good service and thus, declined to set aside the exparte decree. Hence, this appeal.

7. Heard the learned counsel for the parties. Perused the record and proceedings.

8. The scheme of Code of Civil Procedure containing order V Rule 9 primarily contemplates, personal service of summons on the defendant. Rule 9 which has been inserted in the Code, w.e.f. 1/7/2002, reads as under:

"9. Delivery of summons by Court.- (1) Where the 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 shall, unless the Court otherwise directs, 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.

(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and where he is such an officer, the summons may be sent to him in such manner as the Court may direct.

(3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in subrule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court:

Provided that the service of summons under this subrule shall be made at the expenses of the plaintiff.

(4) Notwithstanding anything contained in sub-rule (1),