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2024 Supreme(Online)(KER) 23371
HIGH COURT OF KERALA
Kauser Edappagath, J
AMEER ABDUL AZEES – Appellant
Versus
ARUNKUMAR – Respondent
OP(C) 2222/2023
Substituted service via publication is a legitimate method to ensure notice when personal service fails, particularly in cases involving ex parte decrees.
Headnote:
Substituted Service - Ex Parte Decree - Civil Procedure Code - Sections 27, 151 - The court upheld the trial court's order allowing substituted service of notice to a defendant through paper publication due to unsuccessful attempts at personal service, emphasizing the necessity of notifying all parties involved.
Fact of the Case:
The petitioner, a plaintiff, challenged an order allowing substituted service of notice through paper publication for the 1st defendant, who was not served in previous applications related to setting aside an ex parte decree in a civil suit.
Finding of the Court:
The court determined that since the 1st defendant could not be personally served despite the trial court's efforts, substituted service was justified. The close relationship of the 1st defendant with other respondents did not negate the need for proper notice.
Issues: Whether the trial court's decision to permit substituted service through paper publication for the 1st defendant was legally sound given the circumstances.
Ratio Decidendi: The court ruled that when direct service is ineffective, substituted service through publication is appropriate, ensuring that all parties receive due notice, especially when an ex parte decree is involved.
Final Decision: The original petitions were dismissed.
These original petitions have been filed challenging Ext.P11 common order passed in I.A.No.1 of 2022 & I.A.No.6 of 2022 and I.A.No.2 of 2023 in R.P.No17 of 2020 in O.S.No.37 of 2015 on the files of the Sub Court, Mavelikkara (for short 'the trial court').
2. The petitioner herein is the plaintiff and the respondents are defendants in O.S.No.37 of 2015. The suit was decreed exparte. R.P.No17 of 2020 and I.A.Nos.6 of 2022 were filed by defendants 2 and 3 to set aside the exparte decree. Since the 1st defendant could not be served in both those applications, I.A.No.1 of 2022 and 2 of 2023 were filed to serve notice to R1/ 1st defendant by way of substituted service through paper publication. The trial court allowed those I.As as per Ext.P11 order. It is under challenge in these original petitions.
3. I have heard Sri. B.Renjithkumar, the learned counsel for the petitioner, Sri.Sudeep, the learned counsel for the respondents 1 and 4 and Sri.B.Vinod, the learned counsel for the 3rd respondent.
4. The learned counsel for the petitioner submitted that the respondents herein are none other than the wife and the son of the 1st defendant and thus the 1st defendant is well aware of the proceedings. It is further submitted that only to delay the proceedings, the 1st defendant did not accept the summons. At any rate, the records would show that the trial court could not effect service of summons in the interlocutory applications to the 1st defendant. The application to set aside the exparte decree cannot be proceeded unless and until the 1st defendant is served.
In these circumstances, the only course open to the trial court is to order substitute service by paper publication. The fact that the 1st defendant is a close relative of the remaining defendants is not a ground to oppose the application for substitute service.
I find no merit in these original petitions. Accordingly, these original petitions are dismissed.
