RAJKUMAR SAMPATRAOJI KUTHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Mr. Khapre, learned counsel for the appellant, states that the notice of this Letters Patent Appeal has been meant to be served on respondent no.5. However, returned unserved by the bailiff on the ground that there was no male member of the family when the bailiff went to the house to serve the notice. Mr. Khapre, learned counsel for the appellant, further refers to the affidavit of the appellant s relative, who was accompanied with the bailiff. In the said affidavit, it is stated that the bailiff gave a pre intimation to the respondent no.5 that he intends to serve a notice of the Letters Patent Appeal on respondent no.5. As a result of this intimation, when the bailiff reached the house of respondent no.5, there was no adult male member present and the only person present was the wife of respondent no.5. The bailiff, therefore, made an endorsement to that effect and returned the notice unserved. It appears that this notice has been returned unserved because the bailiff apparently followed the amendment made by the Bombay High Court to Order V rule 15 of the Code of Civil Procedure, 1908, which permits service only on any adult male member of the family. The amendment reads as follows:

(2.) Mr. Khapre, learned counsel for the appellant, submits that Order V Rule 15 of the Code of Civil Procedure as framed by the Bombay High Court is restrictive and enables service only on an adult male member of the family, who is residing with the defendant. The learned counsel further submits that this not only at variance with the rules framed by the Parliament, but is inconsistent therewith since Order V Rule 15 framed by the Parliament permits service to be made on any adult male member of the family, whether male or female, who is residing with defendant.

(3.) In this regard, a reference may be made to Section 16 to the Code of Civil Procedure (Amendment) Act, 2002, amending the Code of Civil Procedure 1908. Section 16 (1) which is relevant, reads as follows: