Point of Law: Service of summons on defendant can be effected under Order V, Rule 15 of Code only if it is specifically so ordered by court and without court having concluded prior to service of summons that defendant cannot be found at his residence within a reasonable time.

ORDER :

Anil K. Narendran, J.

This First Appeal is filed under Order XLIII, Rule (1)(d) read with Section 104 of the Code of Civil Procedure, 1908 (for brevity, ‘the Code’), against the order dated 31.10.2018 of the Additional Sub Court-II, Ernakulam, in I.A.No.3909 of 2015 in O.S.No.295 of 2012, whereby the application filed by the appellant-defendant under Order IX, Rule 13 of the Code for setting aside the ex-parte decree dated 30.06.2012 in the suit stands dismissed, for the reasons stated therein.

2. By the order of reference dated 16.03.2020, a Division Bench of this Court directed the Registry to place this matter before the Hon’ble the Chief Justice, since the Division Bench doubted the correctness of the law laid down by another Division Bench in Arundas v. Priji [2017 (4) KLT 1060] that, under the provisions of Order V, Rule 15 of the Code service of notice can be made on an adult member of the defendant’s family, who is residing with him, only if it is specifically so ordered by the court. Based on the orders of the Hon’ble the Chief Justice, this matter is listed before us.

3. Heard the learned counsel for the appellant, the learned counsel for respondents 1 and 2 and also the learned counsel for the 3rd respondent. The 3rd respondent alone is contesting the matter.

4. The learned counsel for the appellant contended that, in view of the provisions under Order V, Rule 15 of the Code, service of summons can be made on an adult member of the defendant’s family, who is residing with him, only if it is specifically ordered so by the court, as held by the Division Bench in Arundas [2017 (4) KLT 1060].

5. Per contra, the learned counsel for the 3rd respondent contended that, as noticed in the order of reference dated 16.03.2020, where there is no likelihood of the defendant being found at his residence within a reasonable time, and he has no agent empowered to accept service of summons on his behalf, service can be made on an adult member of his family, who is residing with him, without obtaining specific orders from the court.

6. The appellant is the defendant in O.S.No.295 of 2012 on the file of the Additional Sub Court-II, Ernakulam, a suit filed by the 1st respondent herein-plaintiff for realisation of Rs.25,00,000/- from the defendant with interest; a declaration that document No.666/2006 of the Sub Registrar Office, Ernakulam, is fictitious, sham, outcome of fraud and misrepresentation and not binding on the plaintiff; and a permanent prohibitory injunction restraining the defendant from trespassing into plaint A schedule property and interfering with plaintiff's peaceful possession and enjoyment of that property.

6.1. The defendant remained ex parte. The plaintiff filed proof affidavit and Exts.A1 to A6 were marked. By the judgment dated 30.06.2012, the Sub Court decreed O.S.No. 295 of 2012, by setting aside document No.666/2006 of the Sub Registrar Office, Ernakulam. The defendant is restrained by a permanent prohibitory injunction from trespassing into plaint A schedule property and the plaintiff is allowed to recover a sum of Rs.25,00,000/- with interest at the rate of 6% per annum from the date of the suit till realisation from the defendant and his assets.

6.2. The defendant filed I.A.No.3909 of 2015 in O.S.No. 295 of 2012, an application under Order IX, Rule 13 of the Code, for setting aside the ex parte decree on the ground that summons was not duly served on him. On the strength of the ex parte decree, the plaintiff transferred plaint A schedule property to his wife, the 2nd respondent in I.A.No.3909 of 2015 (2nd respondent herein), who transferred the said property to the 3rd respondent in I.A.No.3909 of 2015 (3rd respondent herein). In the said interlocutory application, respondents 1 and 2 did not file any objection. The 3rd respondent filed objection mainly contending that there is due service of summons on the defendant and he was aware of the pendency of O.S.No.295 of 2012. The defendant did not adduce any evi