August 23, 2018
Case name: Dr. Madhav Vishwanath Dawalbhakta & ors. v. M/s. Bendale Brothers
In this recent case, the High Court of Bombay elaborately discussed the law pertaining to substituted service of summons. While elucidating the Law the Court noted that while allowing substituted service, the Court should be satisfied that either the defendant is deliberately avoiding the service, or that for any other reason, the summons cannot be served in ordinary way.
What is Substituted Service?
Order 5 Rule 20 of Code of Civil Procedure provides for substituted services and states that Substituted services takes place:
- By affixing the copy in some conspicuous place in Courthouse 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.
In view of the rule that substituted service can be made in such other manner that the Court thinks fit, the Bombay High Court observed that under this Rule, the Court can take into account the modern ways of service which are available due to internet connection. It can be served also by courier or by email or by whatsapp etc.
While making the aforesaid observation, the Court opined that the service is neither an empty formality nor procedural ritual but the soul of the service is to have the knowledge of the proceedings to the defendant or the contesting party. Therefore, there may be a service laid down as per the procedure, however, still there is no communication of the proceedings to the other party and, therefore, the knowledge is absent. Thus, satisfaction based on instances of the compliance of the proceedings as a mere formality cannot be a correct approach to interpret the principle behind the service. The deeming fiction is created in law to fill up the gap where the procedural law falls short. By accepting that the substituted service is deemed to be a good service, then passing exparte decree is a correct legal step taken by the Court as per the procedure.