Service of summons by registered post to a defendant residing outside the court's jurisdiction is not valid as per the amended provisions of the CPC.

Deepak Gupta, J.

1. This petition under Article 227 of the Constitution of India is directed against the order of the Civil Judge (Jr. Div), (I), Dharamsala dated 23.5.2007 whereby he has allowed the application filed by the respondent, hereinafter referred to as the defendant, and set aside the ex-parte proceedings. While doing so, the learned trial Court has held that on a conjoint reading of Order 5 Rules 9 and 21 CPC, the Court can order service by registered post acknowledgement due only if the defendant resides within the territorial jurisdiction of that Court.

2. Briefly stated the facts of the case are that the petitioner, hereinafter referred to as the plaintiff, instituted a suit on 22.2.2005 for recovery of Rs. 62,620 along with interest in the Court of Senior Sub Judge, Kangra at Dharamsala, who assigned this case to the Court of Civil Judge (Jr. Div) I, Kangra at Dharamsala. The respondent hereinafter referred to as the defendant, resides at Jawali which admittedly falls out side the territorial jurisdiction of the Court at Dharamsala. On 7.7.2005, the trial Court in its order recorded that the registered AD sent to the defendant had been received back with an endorsement of the postal authority that the defendant had refused to receive the same and, therefore, the defendant was deemed to be served in terms of Order V, Rule 9 CPC. The defendant was accordingly proceeded ex parte and the ex parte evidence of the plaintiff was recorded. Thereafter when the case was listed for arguments, the defendant filed an application under Order IX Rule 7 CPC for setting aside the ex parte proceeding.

3. Vide the impugned order dated 23.5.2007 the learned Civil Judge has allowed the said application. One of the grounds which has weighed with the learned Civil Judge while allowing the said application is that on a conjoint reading of Order V, Rules 9 and 21, service of the defendant who resided outside the jurisdiction of the trial Court could not have been ordered by registered post acknowledge due. Resultantly, even if the defendant had refused to accept the summons sent by registered post, he could not be deemed to be served in accordance with law and could not have been proceeded ex parte.

4. I have heard Shri Vikas Bhardwaj, learned Counsel for the petitioner and Shri Janesh Gupta, learned Counsel for the respondent who have rendered able and valuable assistance to this Court.

5. An important question arises in this petition with regard to the interpretation of Order V, Rules 9 and 19 CPC after their amendment by the CPC (Amendment Act, 2002) which amendment came into force with effect from 1.7.2002. Service of the defendant is dealt with under Sections 27 to 29 of the Code of Civil Procedure (for short: CPC). Section 28 deals with service of summons where the defendant resides in another State and reads as follows:

28. Service of summons where defendant resides in another State.- (1) A summons may be sent for service in another State to such Court and in such manner as may be prescribed by rules in force in that State.

(2) The Court to which such summons is sent shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto.

(3) Where the language of the summons sent for service in another State is different from the language of the record referred to in Sub-section (2), a translation of the record:

(a) in Hindi, where the language of the Court issuing the summons is Hindi, or

(b) in Hindi or English where the language of such record is other than Hindi or English,

shall also be sent together with the record sent under that subsection.

To appreciate the important question which arises in this appeal, it would be first being appropriate to deal with the unamended provisions of the CPC. Prior to the promulgation of the Amendment Act, Order V, Rules 9, 19-A and 21 of the unamended CPC prior