CPC Mains Questions

Q. Describe the exigencies, procedure and effect of a substituted service of summons? [MPCJ 2012]

Ans. Order 5 of the CPC provides for various modes of service of summon on the respondent. In nutshell, as a general rule there has to be personal service of the summon on the party. But, Order V-Rule 20(1) of the Code of Civil Procedure, provides that if plaintiff satisfies to the court following ingredient then the court may in its discretion order that a summon may be served on the party by affixing a copy of such summons in some conspicuous place in the Court house and also in some conspicuous place 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-

(a) That the plaintiff has discovered the defendant’s residence but defendant is keeping out of the way for the purpose of avoiding service, or

(b) When the Court is satisfied that for any other sufficient reason the summons cannot be served upon the defendant in the ordinary way.

The compliance of the aforesaid conditions is mandatory. The Hon’ble Apex court has held in Yallawwa vs. Shantavva, AIR 1997 SC 35 that the court cannot automatically grant the application for substituted service without taking steps for service by ordinary procedure as laid down u/o. 5, rules 9, 12, 15 & 17 of the CPC. Thus, the substituted service has to be resorted as the last resort when the court is satisfied that the defendant is deliberately avoiding the service and every effort to effect personal service has failed.