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2014 Supreme(Online)(KER) 14081
HIGH COURT OF KERALA
T.R.RAMACHANDRAN NAIR, P.V.ASHA, JJ
ABBAS – Appellant
Versus
ABDUL RAHIMAN – Respondent
FIRST APPEAL FROM ORDERS 146/2014
Service of summons on an adult family member is valid if proper procedures under the Civil Procedure Code are followed, confirming that compliance with relevant rules was met.
Headnote:
Service - Proper Service - Civil Procedure Code - Order V Sections 15, 17, 19 - The court upheld the service of summons on an adult family member, interpreting Rules 15, 17, and 19 to validate the proceedings without further inquiry as proper service was established.
Fact of the Case:
The appellant was set ex-parte in a suit regarding a sale agreement after summons was served on an adult family member. He contested the validity of the service claiming he was not personally served, which led to the appeal.
Finding of the Court:
The court found that service of summons on the appellant's father, an adult family member, at the residential address was valid as per the rules, and the process server's report supported this.
Issues: Whether the summons served on an adult family member constitutes proper service under the Civil Procedure Code.
Ratio Decidendi: The court determined that service on an adult family member was adequate under Rule 15 of Order V, provided the process server made reasonable efforts to locate the defendant personally, confirmed absence, and no agent was present to accept service.
Final Decision: The appeal was dismissed, affirming the lower court's order.
J U D G M E N T
Asha, J.
Whether the summons served on an adult member of the family amounts to proper service, is the issue involved in this case.
2. The appellant was set exparte in a suit filed by the 1st respondent praying for a decree for return of advance amount paid on the basis of an agreement for sale entered into between the appellant and the 1st respondent. The appellant's father who executed the agreement for sale in his capacity as the power of attorney holder of the appellant was the 1st defendant, who is the 2nd respondent herein. Original Suit No.124 of 2011 was filed by the 1st respondent on 03.12.2011 before the court of the Subordinate Judge, Kasaragode. Summons was issued from the court on 15.12.2011 fixing date for appearance of defendants as 07.01.2012. On 22.12.2011, the 1st defendant/2nd respondent herein received the summons issued to him. The process server served the summons issued to the appellant herein also on the 1st defendant himself, who is the father of the appellant.
3. The 1st defendant appeared in court through an Advocate on 07.01.2012. The 2nd defendant did not enter appearance. The suit was decreed on 26.03.2013 as against the 2nd respondent/1st defendant on merits and decreed exparte as against the appellant/2nd defendant herein.
4. While E.P.No.41 of 2013 filed by the 1st respondent for executing the decree was pending, the appellant filed I.A.Nos.474 of 2013 and 475 of 2013 for setting aside the exparte decree as against him and to condone the delay in filing the same, through a new power of attorney holder - the father-in-law of the appellant. In the affidavit in support of the I.As, the power of attorney holder stated that he came to know about the exparte decree against his son-in- law on 27.06.2013, when he was attending a marriage function and he filed the petition after getting a power of attorney from his son- in-law - the appellant, after contacting the Advocate who appeared for the 2nd respondent. Thus the petitions were filed on 29.07.2013 along with a petition to condone the delay, saying that the appellant did not receive any summons or copy of the plaint. Therefore, it was contended that the impugned order was passed on 26.03.2013 without giving the appellant an opportunity of being heard and that the appellant was working in Saudi Arabia during the period from
07.01.2012 onwards.
5. The 1st respondent resisted the I.As and filed a counter affidavit saying that it is only a collusive affair among the defendants in the suit in order to protract the matter. The 1st respondent opposed the appearance of the appellant through a new power of attorney holder - his father in law, without cancelling the power of attorney already executed in favour of his father, who is the 1st defendant in the suit.
6. 2 witnesses - AW1 and AW2, were examined and Exts.A1 to A3 were marked on the side of the appellant. The report of the process server was marked as Ext.C1. The court below considered the issue on the basis of the pleadings in the I.A as well as the evidence on record.
7. The court below found that the process server had served the summons on the petitioner's father at his residence, on being informed that the appellant/2nd defendant was in Gulf countries and therefore the service of summons was proper as evident from Ext.C1 report of the process server. Contention raised by the appellant that provisions under Order V Rules 15, 17 and 19 of Civil Procedure Code (hereinafter referred to as `CPC') were not duly complied with, in support of his plea for setting aside the impugned order was found untenable. On a perusal of the order sheet of the court, it was found that the 1st defendant, who is none other than the father of the appellant/2nd defendant, had entered appearance through his counsel on 07.01.2012 itself and that the court had recorded the undertaking of the counsel for the 1st defendant to file vakalat on behalf of the 2nd defendant also. It also took notice of the fact that the v
