Procedural Lacuna With Special Reference to Service of Summons
The mechanism of procedural laws is to drive the parties to the court and aiding them to get proper justice from the judiciary through so many procedural provisions. The civil procedural code, 1908 and Criminal procedural code,1973 are the important piece of legislations framed by our Parliament to meet the requirements of parties whenever they are encountered with violations of their rights.
These are effective tools in rendering justice to the aggrieved parties but nowadays losing its sanctity because of certain procedural loopholes at every stage of the suit starting from serving of summons, recording of evidences, availing of adjournments and so on dragging the proceedings over a period of years causing mental agony and economic loss to the parties concern.
It is undisputable fact that procedural laws pour life into substantive laws and substantial laws are of no use without this procedural mechanism. Our Civil Procedural code, 1908 contains so many provisions guiding the parties in moving to the court. These procedural technicalities are not either too stringent or too liberal. They are maximum flexible in nature so as not to be a hurdle to the parties in deriving the benefit instead aiding them in drawing the benefit.
The very purpose of procedural laws is to see that every aggrieved person is suitably compensated for the injury caused to him. Despite the significance and importance assigned to CPC and CRPC, people are frequently encountered with so many problems in getting speedy and effective justice because of procedural lacunae.
I would like to focus on the important provision in CPC which is creating some sort of hurdles to the parties concern. That is, regarding Service of Summons Order V and its Amendment in 2002. The object of these provisions and the amended provisions are to speed up the proceedings so as to benefit the parties. But in reality the proceedings themselves are paving the way for getting exparte decrees in favour of plaintiff and causing problem to the defendant and also on the other side by considerably reducing the time for reissue of summons from one month to 7 days is causing so much inconvenience to the plaintiff and again directing him to file a fresh suit instead of continuing the original suit.
My fundamental point is as per the new Order, summons are permitted to be issued by the plaintiff or by the courier service. Though, it is very much laudable since it is trying to speed up the proceedings by permitting the courier service but at the same time give a chance for abuse of this provision by the plaintiff as well as by the courier service This is to be utilized properly to derive the true intention of the legislature. But in practice it is used to stab the interest of the defendant taking undue advantage of the provision. If we analyze the provisions given in Order V rule 9 of CPC, it may be clear that in some cases how it is being misused.
Order V rule 9(Amendment w.e.f. 1/7/2002) runs as follows:
(1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court.
(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him in such manner as the Court may direct.
(3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court:
Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff.
(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the Court in -which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of rule 21 shall not apply.
(5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:
Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that me acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1).
9A. Summons given to the plaintiff for service
(1) The Court may, in addition to the service of summons under rule 9, on the application of the plaintiff for the issue of a summons for the appearance of the defendant, permit such plaintiff to effect service of such summons on such defendant and shall, in such a case, deliver the summons to such plaintiff for service.
(2) The service of such summons shall be effected by or on behalf of such plaintiff by delivering or tendering to the defendant personally a copy thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court or by such mode of service as is referred to in sub-rule (3) of rule 9.
(3) The provisions of rules 16 and 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.
(4) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgment of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant.]
Now if closely analyse the provision given under 9 (3) and 9 (5) of Order V, where summons are served through registered post acknowledgment due addressed to the defendant or to his authorised agent empowered to accept the service or through courier service which are approved by the High court and
If the same which is purported to be signed by the defendant or his authorised agent is received by the court or postal article containing summons is received back by the court with an endorsement “ refused “ to accept when tendered to the defendant , the court issuing the summons shall declare that the summons are duly served on the defendant provided it is properly addressed and duly sent. This declaration referred to in this sub rule is irrespective of any other reasons that is may be the acknowledgement is lost or otherwise.
Because of the above provision the defendant may be some times put to some loss. in Harish Rajaldas Makhija Vs Ravivaswani, SC CA no. 8158 2009 ( arising out of SLP (c) No 28583 of 2008) it is observed by the Supreme court that there is however, a danger of false reports of service. It is required to be adequately guarded against. The courts shall have to be very careful while dealing with a case where orders for deemed service are required to be made on the basis of endorsement of such service or refusal.
The High Courts can make appropriate rules and regulations or issue practice directions to ensure that such provisions of service are not abused so as to obtain false endorsements. In this regard, the High Courts can consider by making a provision for filing of affidavit setting out details of events at the time of refusal of service. For instance, it can be provided that the affidavit of the person effecting service shall state as to who all were present at that time and also that the affidavit shall be in the language known to the deponent. It can also be provided that if an affidavit or any endorsement as to service is found to be false, the deponent can be prosecuted under perjury case. This is one side of the coin putting the defendant to some trouble.
But where the plaintiff who comes forward with a memo of refusal of service by defendant, Order V Rule 9 A(4) provides for reissue of summons. But the procedure for reissue of summons is provided under Order 9 Rule 5, according to which if plaintiff cannot file an application for reissue within 7days from the date return of summons, the case be automatically dismissed and again it at all he wants to open it, he has to file a fresh suit. But practically it is highly impossible to file the application for reissue within 7 days, because sometimes the plaintiff may come to the notice of return after 7 days, then again he has to go for fresh suit. Previously the period for reissue of summons would be one month, now under the amendment it is considerably reduced to 7 days which is creating practical problems to the plaintiffs in driving him to go for the fresh suit.
So it is finally felt that procedural lacunae must be considerably reduced so as to render proper, effective and quick justice to the parties and must be seen that the public confidence among judiciary is not flustered.
Author: B. Vijayalakshmi
Asst. Professor, M.G.Law College
Mobile no: 9493013137