Non-compliance with the mandatory provisions of Order V Rule 19 of the Civil Procedure Code, requiring examination of the process server and declaration of due service, renders the service of summons ineffective.

1. The petitioner is the first defendant in Title Suit No.88/2007, pending on the file of the learned Civil Judge (Junior Division) 5th Court, South 24 Parganas at Alipore, instituted by the first opposite party (hereafter the plaintiff). It is a suit for declaration and permanent injunction.

2. By an order passed by the learned Judge on November 17, 2009, the suit was to proceed ex-parte against the petitioner and the second defendant since they had refused summonses when tendered and were not contesting it by entering appearance. However, the plaintiff was directed to take steps for service on the other defendants.

3. It was at this stage that the petitioner filed an application. It was alleged therein that he had no notice of institution of the suit and was, therefore, unable to enter appearance. He had heard in the locality that the plaintiff had instituted a civil suit against him and several others, where after he contacted a learned advocate who filed an application for information on September 20, 2010. The information that was furnished revealed that a civil suit had in fact been instituted by the plaintiff and that a date had been fixed on November 16, 2010. A prayer was accordingly made for vacating the order dated November 17, 2009 and to allow the petitioner to enter appearance and to file his written statement.

4. The application was taken up for consideration by the learned Judge on November 16, 2010. On perusal of the records of the suit, he formed an opinion, based on the report of the process server dated May 17, 2007, that summons was refused by the petitioner. The prayer of the petitioner thus stood rejected on contest, without cost. Noticing that there was no service return in respect of the third to fifth defendants, it was observed that fresh summonses ought to be served upon them and the plaintiff was, accordingly, directed to take steps in this behalf within seven days.

5. Mr. Banerjee, learned advocate representing the petitioner contended that the learned Judge committed gross jurisdictional error in rejecting his prayer by placing complete reliance on the report of the process server. He invited the attention of the Court to provisions contained in Order V Rule 19 of the Civil Procedure Code (hereafter the Code) together with its amendment effected by this Court and contended that the provisions thereof had been observed in the breach rendering the order impugned vulnerable. According to him, the process server’s report manifests that it is not in the form of a declaration, duly verified, and therefore he ought to have been examined by the Court on oath before a declaration could be made that the summons was duly served on the petitioner. The learned Judge while making the impugned order having failed to take note of the provisions of Order V Rule 19 of the Code, he contended that the same is indefensible.

6. Mr. Banerjee relied on various decisions, viz. AIR 1988 Patna 166 (Bhagwan Singh & ors. v. Ram Balak Singh & anr.), AIR 1987 MP 252 (Kunja v. Lalaram & ors.), AIR 1985 Orissa 215 (Sambhunath Das v. Sirish Ch. Mohapatra), AIR 1979 Raj 108 (Prakash Chander v. Smt. Sundar Bai), AIR 1970 Madras 271 (Parasurama Odayar v. Appadurai Chetty and ors.) and AIR 1923 Madras 27 (Karuthan Ambalam v. M. Doraiswamy Iyengar & Bros.) for the proposition that if there has been no declaration of due service in the manner as ordained by Order V Rule 19, service cannot be treated to have been effected in accordance with law. There being serious miscarriage of justice, he urged Court to intervene.

7. Mr. Roy, learned advocate appearing for the plaintiff, on the contrary contended that the petitioner was all along aware of institution of the suit and that the application filed by him is nothing but part of a dilatory strategy to buy time and to procrastinate the suit. He contended that the learned Judge while making the order dated November 17, 2009 had reached a satisfaction that the petitioner had refus