JOSE Vs. PRABHAKARAN

JUDGEMENT

(1.) Revision petitioner is the plaintiff in O.S. 161/83 before Sub Court, Irinjalakuda. Respondent defendant was served with summons by registered post. He remained absent on the date of hearing and an ex parte decree was passed against him on 19th March 1984. A petition was filed by him as I.A. 719/84 to get the ex parte decree set aside on the ground that he was not served with summons through court and that he was advised that he need appear only after summons is served by a serving officer of the court. He knew about the decree when he enquired with his Advocate on 31st May 1984 and immediately thereafter the petition to set aside ex parte decree was filed. The petition was resisted by plaintiff-revision petitioner who contended that defendant was served with summons and there was no genuine reason for his non appearance on the date of hearing. The court below allowed the application on condition to pay costs. That order is challenged in this revision.

(2.) It is urged on behalf of revision petitioner that summons was served on the defendant by registered post and that amounts to proper service. The receipt of summons by post is admitted by respondent but his excuse for the non appearance appears to be that he was advised that he would get summons through court and that he need appear only after he is served summons by a serving officer of the court. It was under these circumstances that respondent remained absent and the decree passed against him ex parte. The short point to be decided is whether there has been proper service of summons on the defendant.

(3.) O.5, C.P.C. is the statutory provision regulating service of process of court in civil cases. The service of summons on defendants residing within the jurisdiction of the court in which the suit is instituted is governed by R.9 to 19 of Order V. Simultaneous service of summons is provided for in R.19A and substituted service in R.20. The ordinary and usual mode of service of summons on a defendant residing within the jurisdiction of the court is by delivering the summons on the defendant in person unless he has an agent empowered to accept service in which case the service on such agent shall be sufficient. If the defendant is absent from his residence at the time when the service of summons is sought to be effected on him and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf service may be made on any adult member of the family who is residing with him. The person who accepts the summons be it the defendant or his agent or any adult member of his family shall endorse the acknowledgment of service by signing on the original summons.