Following its pioneering nature in incorporating modern means to fill the gap where the procedural laws fall short in application based issues, Hon’ble Bombay High Court opined that the purpose of issuance of summons will end up being a husk if the purpose for which it is incorporated i.e. knowledge to the defendant or the contesting party is not complied with.
In a writ petition filed against an order passed by the District Judge-Pune, a single judge bench comprising of Justice Mridula Bhatkar held that the court can take into account the modern ways of service which are available due to internet connection. It can be served also by courier or by email or by WhatsApp etc.
The factual matrix of Dr. Madhav Vishwanath Dawalbhakta (Deceased) through LRs Dr. Nitin M. Dawalbhakta & Ors. V. M/s. Bendale Brothers are that an ex-parte order was passed by the trial judge of Small Causes Court of Pune concluding that the process prescribed in Order 5 Rule 17 and Rule 20 has been complied by the plaintiff and yet the defendant did not appear in front of the court. An application was made before the District Judge to set aside the ex-parte order under Order 9 Rule 13, as well as an application to condone the delay, describing the circumstantial difficulty faced by the defendant. The defendant asserted before the court that they do not reside at the address wherein the summons was served in accordance with Order 5 Rule 17 and 20, therefore he never had a knowledge of the said proceeding. The District Judge allowed the said application opining that the purpose of Order 5 Rule 17 and Rule 20 stands infructuous if the defendant had never known about the same. This order was appealed in the present writ petition.
Hon’ble Justice Bhatkar took into consideration several judgments of the Apex Court, and made the following observations-
“. . . However, the sub-rule (iii) [Order 5 Rule 20 sub-rule (iii)] gives further option that the summons can be served in such manner as the Court thinks fit. Thus, the manner which the Court opts for should be akin to the earlier mode of service, which is mentioned in the Rule. For this, the Court can take into account the modern ways of service which are available due to internet connection. It can be served also by courier or by email or by WhatsApp etc. The Court should be satisfied about such service [emphasis applied].”
Hon’ble High Court also reiterated an important observation regarding Order 5 Rule 20 that Rule 5 sub-rule (1A) is in continuation of sub-rule (1) as this rule contemplates “or in such other manner the Court thinks fit” and sub-rule (1A) describes one “one such manner”. So apart from the procedure mentioned in sub-rule (1) other means can be set by the Court which it deems fit. This option is given to the court in order to fill the gap where procedural laws fall short.
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