The Supreme Court held that substituted service under Order 5 Rule 20 Code of Civil Procedure is an exception to the normal mode of service. It further held that while ordering substituted service the court must be satisfied that either 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 Apex court in this judgement also laid down the remedies available to a defendant against whom an ex-parte decree has been passed. This was so held in the case titled as Neerja Realtors Private Ltd. Vs Janglu Civil appeal no 71 of 2018 decided on 29.01.2018.
The question before the apex court was whether under Order V Rule 20, it was not necessary to affix a copy of the summons at the court house and at the house where the defendant is known to have last resided, once the court had directed service by publication in the newspaper.
The apex court scrutinized report of the bailiff where he stated that he was unable to find the defendant at the address which was mentioned in the summons. The report of the bailiff does not indicate that the summons was affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a clear breach of the procedure prescribed in Order V Rule 17 even antecedent thereto.
Order V Rule 20 requires the Court to be satisfied either 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. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it
The supreme court relied on Bhanu Kumar Vs Archana Kumar (2005) 1 SCC 787, Rabindra Singh Vs Financial Commissioner, Cooperation, Punjab (2008) 7 SCC 663 and Mahesh Yadav Vs Rajeshwar Singh (2009) 2 SCC 205 to clarify that a defendant against whom an ex-parte decree is passed has two options: The first is to file an appeal. The second is to file an application under Order IX Rule 13. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application under Order IX Rule 13. But if the appeal is dismissed as a result of which the ex-parte decree merges with the order of the Appellate Court, a petition under Order IX Rule 13 would not be maintainable. When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Section 96.