Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Mandatory Nature of Service with Copy of Plaint - Order 5, Rule 2 CPC explicitly mandates that every summons must be accompanied by a copy of the plaint. Case law consistently affirms that this requirement is mandatory, and failure to serve the plaint along with the summons renders the service illegal, not merely irregular. ["ASHIQ HUSSAIN & ORS. vs MUZAFFAR ALI HAKEEM & ANR. - Jammu and Kashmir"], ["Anima Boro VS Hemanta Sargawari - Gauhati"], ["Sheela Wati @ Sheela Kiran @ Sheela (since Deceased) VS Ravi Tandon - Punjab and Haryana"]
Publication vs. Affixture as Service Methods - The sources primarily discuss the importance of proper service under Order 5, Rule 2 CPC, emphasizing that serving the summons alone is insufficient unless the plaint or a concise statement is also attached. The question of publication or affixture alone sufficing is not directly addressed, but the legal emphasis on serving the plaint indicates that both steps are generally considered necessary for complete and proper service.
Legal Consequences of Improper Service - Service that does not comply with Order 5, Rule 2 CPC, such as serving without the plaint or through improper methods like publication or affixture alone, may be deemed incomplete or invalid. The courts have held that due service requires actual delivery of the summons along with the plaint, and mere publication or affixture does not meet this requirement unless supplemented by other proper service steps. ["ANIMA BORO AND ORS vs HEMANTA SARGAWARI AND 2 ORS - Gauhati"], ["ITD CEMENTATION INDIA LIMITED Vs INDIAN OIL CORPORATION LIMITED & ANR - Delhi"], ["Itd Cementation India Limited VS Indian Oil Corporation Limited - Delhi"], ["Anima Boro VS Hemanta Sargawari - Gauhati"], ["Sheela Wati @ Sheela Kiran @ Sheela (since Deceased) VS Ravi Tandon - Punjab and Haryana"]
Both Steps or Either Publication/Affixture? - The consensus from the case law suggests that both publication/affixture and actual service (with the plaint) are important, but the complete and proper service is achieved only when the court ensures that the defendant receives the summons along with the plaint. Publication or affixture alone, without actual delivery of the plaint, does not suffice to declare service complete.
Based on the authoritative case law and statutory provisions, serving a notice solely through publication or affixture does not suffice; service must include delivering the summons along with a copy of the plaint to be considered complete under Order 5, Rule 2 CPC. While publication or affixture can be used as supplementary or alternative methods in certain circumstances, they cannot replace the requirement of actual service with the plaint to ensure proper notice. Therefore, both steps are generally considered necessary, with the primary focus on actual delivery of the plaint in addition to any other methods employed.
References:- Order 5, Rule 2 CPC- Case law: ASHIQ HUSSAIN & ORS. vs MUZAFFAR ALI HAKEEM & ANR. - Jammu and Kashmir, Anima Boro VS Hemanta Sargawari - Gauhati, Sheela Wati @ Sheela Kiran @ Sheela (since Deceased) VS Ravi Tandon - Punjab and Haryana, ANIMA BORO AND ORS vs HEMANTA SARGAWARI AND 2 ORS - Gauhati, Itd Cementation India Limited VS Indian Oil Corporation Limited - Delhi, ITD CEMENTATION INDIA LIMITED Vs INDIAN OIL CORPORATION LIMITED & ANR - Delhi
In civil litigation, proper service of summons is the cornerstone of due process. Imagine a scenario where a defendant misses a court date due to improper notice, leading to an ex-parte decree that could be set aside later, causing delays and costs. A common question arises: Whether under Order 5 Rule 20 CPC either publication in a newspaper or affixture would suffice the requirement to decode the service of notice complete or both steps are mandatory?
This blog post delves into the nuances of substituted service under Order 5 Rule 20 of the Code of Civil Procedure (CPC), 1908. We'll explore statutory provisions, key judicial precedents, and practical implications, drawing from established case law. Note: This is general information based on legal interpretations and not specific legal advice. Consult a qualified lawyer for your case.
Order 5 Rule 20 CPC provides for substituted service when personal service of summons is not feasible. Typically, this applies if the court believes the defendant is avoiding service or if ordinary service methods fail.
Order 5 Rule 20(1) CPC states: Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.JAMSHED BAHADUR VS RASHIDA BEE - 2009 0 Supreme(MP) 152
This provision explicitly mandates affixture—attaching the summons conspicuously at the courthouse and the defendant's last known residence or business place. Rule 20(1A) allows for newspaper publication as an additional mode, but it does not replace affixture.
Rule 20(3) reinforces: Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.JAMSHED BAHADUR VS RASHIDA BEE - 2009 0 Supreme(MP) 152 However, this effectiveness hinges on full compliance with both steps.
Courts have consistently held that either publication in a newspaper or affixture alone does not suffice for complete valid substituted service. Both are mandatory to ensure fairness and notice.
In Satish Construction Company, BhilaiJAMSHED BAHADUR VS RASHIDA BEE - 2009 0 Supreme(MP) 152, the court ruled: the provisions are two fold... The records of civil suit do not show that the summons sent for publication in the newspaper were ever affixed in some conspicuous place in the Court-house. The trial Court committed breach of the mandatory provisions of order 5 Rule 20... This underscores the dual requirement.
BhagirathJAMSHED BAHADUR VS RASHIDA BEE - 2009 0 Supreme(MP) 152 emphasized: The attachment of the copy of the plaint or a concise statement thereof along with the summons is mandatory. No summons can be regarded to have been duly served unless it is accompanied by a copy of the plaint.
Nahar EnterprisesRamesh Pal VS Hans Raj Kapoor - 1989 0 Supreme(P&H) 414 confirmed: every summons, except in the case of one issued by the City Civil Court, shall be accompanied by a copy of the plaint, and held publication alone insufficient without affixture.
Another ruling Harbhajan Singh VS Pushpa Wali - 1980 0 Supreme(P&H) 169 highlighted: the court was bound to affix the summons conspicuously, and failure invalidates service.
These cases illustrate that partial compliance renders service invalid, potentially leading to ex-parte decrees being set aside.
Related precedents further reinforce strict adherence:
In a Madhya Pradesh case Indore Holding Private Limited VS Chimanlal - 2019 Supreme(MP) 286, the court noted the trial court's error in ordering publication under Order 5 Rule 20 without following Order 5 Rule 17 (attempts at personal service) or recording justifiable reasons: Whether the trial Court did not fall in error ordering for publication of notice in news paper under Order 5 rule 20 CPC without adhering to the procedure of service of notice under Order 5 rule 17 CPC? The necessity of reasons for substituted service was pivotal, and non-compliance led to setting aside the ex-parte decree.
A Punjab & Haryana High Court observation SUKHDEV KAUR vs JAGJIT SINGH stressed mandatory provisions like Order 5 Rule 19A, introduced in 1976, for simultaneous service steps in summons procedures.
In Axis Bank Ltd v Mira Gehani & OrsAtlanta Limited VS Metso India Pvt. Ltd. - 2021 Supreme(Bom) 1225, service without a plaint copy was deemed invalid: Service of the writ of summons without an accompanying copy of the plaint - Consequences of non-conforming writ of summons. This aligns with CPC's emphasis on complete documentation alongside affixture and publication.
Another view Paromita Mondal VS Tarun Kumar Mondal clarified Sub-Rule (1A) applies only after Sub-Rule (1) conditions, requiring court satisfaction for publication: Sub-Rule (1-A) of Order 5 Rule 20 CPC would apply only in cases where the Court acts under sub-Rule (1)... which confers power on the Court to direct service of notice through paper publication only when it is satisfied...
In a family matter Priyadarshani Mohapatra VS Lalmohan Mohapatra - 2017 Supreme(Ori) 974, before publication, courts must record: Before proceeding to issue a direction to publish the notice under Order 5 Rule 20, CPC, the Court has to record a finding that he has reason to believe that the respondent... is keeping out of the way...
These rulings from diverse contexts—commercial, family, and revenue—consistently demand procedural rigor.
Rarely, a court might order a single method if circumstances justify, but this requires explicit documentation. Generally, both affixture and publication (or equivalent under Rule 20(1A)) are expected. Order 5 Rule 2 mandates attaching the plaint copy to every summons Mohan Lal VS Bheru Lal Bafna official receiver of Bhopal Singh Lrs (deceased) - 2023 Supreme(Raj) 2289, adding another layer: Order 5, Rule 2 of the CPC reads as under: 'Copy of plaint annexed to summons - Every summons shall be accompanied by a copy of the plaint.'
Failure, as in SHEELA WATI @SHEELA KIRAN @SHEELA SINCE DECEASED THROUGH HER LRS Vs RAVI TANDON, is not directory: Compliance of the provisions of Order 5 Rule 2 Civil Procedure Code is a must and it cannot be held to be directory.
To avoid challenges:- Courts: Strictly comply with both affixture and publication; record reasons for substituted service Indore Holding Private Limited VS Chimanlal - 2019 Supreme(MP) 286.- Plaintiffs: Verify execution of both steps and retain process server reports.- Defendants: Scrutinize service proofs in applications to set aside ex-parte decrees under Order 9 Rule 13 CPC Paromita Mondal VS Tarun Kumar Mondal.
Non-compliance may lead to proceedings being set aside, as seen in multiple cases where publication alone failed K. M. Azmathullah Badsha VS Santhi Swarup Patnaik - 2013 Supreme(Mad) 2726.
Under Order 5 Rule 20 CPC, both affixture and newspaper publication are typically mandatory for valid substituted service—neither alone suffices. Judicial precedents like Satish ConstructionJAMSHED BAHADUR VS RASHIDA BEE - 2009 0 Supreme(MP) 152, Nahar EnterprisesRamesh Pal VS Hans Raj Kapoor - 1989 0 Supreme(P&H) 414, and others Harbhajan Singh VS Pushpa Wali - 1980 0 Supreme(P&H) 169Indore Holding Private Limited VS Chimanlal - 2019 Supreme(MP) 286 emphasize this to uphold natural justice.
Key Takeaways:- Always attempt ordinary service first (Order 5 Rule 17).- Document affixture at courthouse and defendant's last known address.- Follow with publication if ordered, ensuring plaint copy attachment.- Incomplete service risks ex-parte orders being overturned.
Stay informed on CPC procedures to safeguard your rights. For tailored advice, reach out to a legal professional.
References: Cited document IDs include JAMSHED BAHADUR VS RASHIDA BEE - 2009 0 Supreme(MP) 152, Ramesh Pal VS Hans Raj Kapoor - 1989 0 Supreme(P&H) 414, Harbhajan Singh VS Pushpa Wali - 1980 0 Supreme(P&H) 169, Indore Holding Private Limited VS Chimanlal - 2019 Supreme(MP) 286, Paromita Mondal VS Tarun Kumar Mondal, Priyadarshani Mohapatra VS Lalmohan Mohapatra - 2017 Supreme(Ori) 974, Atlanta Limited VS Metso India Pvt. Ltd. - 2021 Supreme(Bom) 1225, Mohan Lal VS Bheru Lal Bafna official receiver of Bhopal Singh Lrs (deceased) - 2023 Supreme(Raj) 2289, SUKHDEV KAUR vs JAGJIT SINGH, SHEELA WATI @SHEELA KIRAN @SHEELA SINCE DECEASED THROUGH HER LRS Vs RAVI TANDON, K. M. Azmathullah Badsha VS Santhi Swarup Patnaik - 2013 Supreme(Mad) 2726.
#CPCIndia, #SubstitutedService, #Order5Rule20
Therefore all the conditions provided under Order 5, Rule 17 CPC have been complied with. ... Order 5, Rule 2 of the CPC reads as under: "Copy of plaint annexed to summons - Every summons shall be accompanied by a copy of the plaint." 9. ... to the service of summon by the process server are not only factually incorr....
On an analytical examination of the entire case law cited at the Bar and on pursuing Order 5 Rule 2, Civil Procedure Code it can safely be held that attachment of the copy of the plaint or a concise statement thereof along with the summons is mandatory. ... „Due service‟ means service of summons along with the plaint. It cannot be held that the word du....
Under Order V Rule 2 of the CPC it is mandatory that every summons shall be accompanied by a copy of the plaint. From the record it is seen that on 24.10.2019 steps for service of notice on the defendant respondent No. 3 was issued by the court. ... In this case, when the copy of the plaint itself does not reveal any cause of action against the defendant, the object be....
Under Order V Rule 2 of the CPC it is mandatory that every summons shall be accompanied by a copy of the plaint. From the record it is seen that on 24.10.2019 steps for service of notice on the defendant respondent No. 3 was issued by the court. ... In this case, when the copy of the plaint itself does not reveal any cause of action against the defendant, the object beh....
Provisions of Order 5 Rule 19A of Code of Civil Procedure, which are mandatory, should have been Procedure given in Order 5 of the Code of Civil Procedure. ... 5 Rule 19A Civil Procedure Code was introduced by Act No.4 of 1976 with effect from 1.2.77 in the Code summo....
5.2 Service upon Appellant/defendant no. 1 was not proper in terms of Order V Rule 2 CPC. ... Order 5 Rule 2 CPC reads as under: 2 CPC. ... It is contended that the service of the summons is complete only when the complete pla....
5.2.Service upon Appellant/defendant no. 1 was not proper in terms of Order V Rule 2 CPC. It is contended that the service of the summons is complete only when the complete plaint with the documents are supplied to the defendant. ... Order 5 Rule 2 CPC reads as u....
The endorsement to the left says that it is a summons to answer plaint under Section 27 of the Code read with Order 5 Rules 1, 5 and 7 and Order 7 Rule 9. ... Order 5 of the Code deals with issue and service of the summons. It was not amended by the CCA. Rules 1 and 2 of Order 5 of the Code read: "1. ... It is direc....
On an analytical examination of the entire case law cited at the bar and on pursuing Order 5 Rule 2, Civil Procedure Code, it can safely be held that attachment of the copy of the plaint or a concise statement thereof along with the summons is mandatory. ... 'Due service' means service of summons along with the plaint. It cannot be held that the word '....
Compliance of the provisions of Order 5 Rule 2 Civil Procedure Code is a must and it cannot be held to be directory.” ... On an analytical examination of the entire case law cited at the bar and on pursuing Order 5 Rule 2, Civil Procedure Code, it can safely be held that attachment of the copy of the plaint....
The report of processes under Sections 82/83 CrPC should be made by SHO himself. The publication of the proclamation under Sections 82/83 CrPC in the newspaper should be mandatory of the newspaper agency and copy of that newspaper be sent by post to the address of the accused as is being done in Civil matters under Order 5 Rule 10 of CPC. The statement of the process server should be recorded by the Magistrate.
And/also in absence of any prayer for paper publication in the application dated 13/07/2004? Whether the trial Court did not fall in error ordering for publication of notice in news paper under Order 5 rule 20 CPC without adhering to the procedure of service of notice under Order 5 rule 17 CPC?
11. Sub-Rule (1-A) of Order 5 Rule 20 CPC would apply only in cases where the Court acts under sub-Rule (1) of Order 5 Rule 20 CPC which confers power on the Court to direct service of notice through paper publication only when it is satisfied that it has reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason summons cannot be served in the ordinary way. The order under appeal does not record that the co....
Hence, the husband filed a petition under Order 5 Rule 20 CPC to take out substituted notice by publication in newspaper. Assailing the same, the present appeal has been filed. 3. Registered notices were sent in the address of his wife returned back being undelivered. By order of the Family Court, substituted notice was published in Odia Daily “The Samaj” on 16.04.2016 and learned Judge, Family Court proceeded with the matter ex parte and the impugned judgment and order was p....
No doubt, effecting of paper publication in a daily newspaper as contemplated under sub-rule (1A) has to be considered as an effective service of notice as contemplated under Order 5 Rule 20(2). However, if it is pleaded and proved that such defendant was not at all residing or carrying on business or personally working for gain in the said address and was residing elsewhere outside the locality where the newspaper was in circulation, then certainly it is for the Court to con....
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