# Subhaschandra Gupta v. Ajay Kumar Sharma & Ors

- **Citation:** (2026) 2 ILRA 1301
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-11
- **Case number:** First Appeal From Order No. 1370 of 2024
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhaschandra-gupta-v-ajay-kumar-sharma-ors-54164
- **Pages:** 16

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2 All. Subhaschandra Gupta Vs. Ajay Kumar Sharma & Ors.
1301

17. Accordingly, the cross-objection preferred by the claimants for enhancement of
compensation is allowed. The impugned judgment and award of the tribunal dated
29.11.2014 is modified to the above extent.

18. If any amount has been paid by the insurance company previously, then the insurance
company is entitled to adjust it accordingly. The insurance company is directed to deposit the
enhanced amount of compensation before the concerned tribunal within two months. The tribunal
will be at liberty to proportionally award the enhanced amount of compensation to the claimants,
keeping in view their age and dependency.
----------
(2026) 2 ILRA 1301
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.02.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal From Order No. 1370 of 2024

Subhaschandra Gupta ...Appellant
Versus
Ajay Kumar Sharma & Ors. ...Respondents

Issues for Consideration
(i) Whether the first appellate court was justified in permitting substituted service under Order V Rule 20 CPC
without sufficient material showing that the defendants were avoiding service;
(ii) Whether the ex-parte judgment passed in the appeal without proper service of summons and without
affording an opportunity of hearing was sustainable;
(iii) Whether the rejection of the application under Order 41 Rule 21 CPC for recalling the ex parte judgment
was legally justified.

Headnotes
Civil Procedure Code, 1908 - Order V Rule 20 - Substituted service - Preconditions:

Held: Substituted service under Order V Rule 20 CPC is an exception to the normal mode of service and can
be resorted to only when the Court, on the basis of material on record, records satisfaction that the defendant
is keeping out of the way for the purpose of avoiding service or that summons cannot be served in the
ordinary manner; such satisfaction must be based on earlier attempts made for service and cannot be
presumed in absence of material. [Paras 26-27]

Civil Procedure Code, 1908 - Order V Rules 17, 20, 21 - Service of summons - Mandatory
compliance:

Held: Before resorting to substituted service, the Court must ensure compliance of mandatory provisions
relating to service, including attempts through registered post acknowledgment due, service through process
server and, where the defendant resides outside jurisdiction, service through the competent Court under
Order V Rule 21 CPC; absence of any documentary evidence regarding such attempts vitiates the order
permitting substituted service. [Paras 28-32, 35-36]
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Procedure Code, 1908 - Substituted service - Absence of material - Illegality:

Held: Where no documentary evidence was available on record regarding issuance, service or refusal of
registered notices or summons, no report of process server existed and no compliance of Order V Rule 17 CPC
was shown, the appellate court could not have permitted substituted service through publication in
newspaper. [Paras 31, 35-36]
Civil Procedure Code, 1908 - Ex-parte proceedings - Opportunity of hearing - Validity:

Held: Where substituted service was not validly effected and there was no proof of service of notice either on
the defendant or on his counsel, proceeding to hear the appeal ex-parte without affording opportunity of
hearing was unsustainable. [Paras 37-39]

Civil Procedure Code, 1908 - Order 41 Rule 21 - Recall of ex-parte decree - Sufficient cause:

Held: Where service of summons was not duly effected and the defendant had no knowledge of the
proceedings, there existed sufficient cause for non-appearance, and the application for recall of ex-parte
judgment ought to have been allowed. [Para 41]

Civil Procedure Code, 1908 - Findings - Presumption without evidence - Validity:

Held: Findings of the appellate court presuming service of summons and knowledge of proceedings on the
basis of conduct of the defendant, without any supporting documentary evidence, are perverse and legally
unsustainable. [Paras 40-41]

Civil Procedure Code, 1908 - Appeal - Interference - Setting aside ex-parte decree:

Held: Where substituted service was illegally permitted, mandatory provisions of service were not complied
with and the defendant was denied opportunity of hearing, the impugned order rejecting recall application
and the ex-parte judgment and decree were liable to be set aside and the appeal restored for decision on
merits. [Paras 41-42]

Appeal allowed. (E-14)

Case Law Cited
Om Prakash v. Prakash Chand and others, Neutral Citation 2004 AHC 106 (DB) - relied on;
Teharoon Chand v. Surajmull Nagarmull, AIR 1984 Cal 82 (DB) - relied on; K. Raja v. V.
Prabhakar, Neutral Citation 2024 KHC 49086 - relied on; Virendra Kumar Sondhi v. Sudesh
Kumar Suri and others, 2022 SCC OnLine MP 1304 - referred to; Mrs. Payal Ashok Kumar Jindal
v. Capt. Ashok Kumar Jindal, (1992) 3 SCC 116 - relied on; Smt. Yallawwa v. Smt. Shantavva,
(1997) 11 SCC 159 - relied on; Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338 - relied
on; M/s Neerja Realtors Private Limited v. Janglu (Dead) through LRs, (2018) 2 SCC 649 - relied
on.

List of Acts / Statutes
Code of Civil Procedure, 1908.

List of Keywords
Substituted service; Service of summons; Process server; Registered post; Ex-parte decree; Recall of decree;
Opportunity of hearing; Perverse finding.

Case Arising From
2 All. Subhaschandra Gupta Vs. Ajay Kumar Sharma & Ors.
1303
Order dated 23.05.2024 passed by Additional District Judge, Court No. 6, Ghaziabad in Miscellaneous Case
No. 71 of 2019 (Subash Chand Gupta vs. Ajay Kumar Sharma and others), rejecting application under Order
41 Rule 21 CPC for recalling ex-parte judgment dated 17.07.2019 passed in Civil Appeal No. 146 of 2011.

Appearance for Parties
For the Appellants: Sri Pramod Kumar Jain, Senior Advocate, Syed Fahim Ahmed
For the Respondents: Sri Devid Kumar Singh, Sri Prateek Rai

(Delivered by Hon'ble Sandeep Jain, J.)

1. The instant appeal under Order 43 Rule 1(t) read with Section 104 CPC has been preferred
by the defendant against the impugned order dated 23.5.2024 passed by Indu Dwivedi, Additional
District Judge, Court No.6, Ghaziabad in Miscellaneous Case No. 71 of 2019 Subash Chand Gupta
vs. Ajay Kumar Sharma and others whereby, the defendants application no.4-C under Order 41
Rule 21 CPC for recalling the ex-parte judgment in Civil Appeal no.146 of 2011, and to rehear the
appeal on merits, has been rejected.

2. Appeal is admitted.

3. Factual matrix is that the plaintiff -respondents no. 1 to 3 filed O.S. no. 544 of 1997 against
the defendant-appellant and co-defendant /respondent Phool Singh(died during pendency of suit)
for the relief of permanent injunction and possession, which was dismissed on merits by Additional
Civil Judge (Senior Division) Court No.2 Ghaziabad on 18.8.2011, which was challenged by the
plaintiffs by filing Civil Appeal no. 146 of 2011 Ajay Kumar Sharma and others vs. Gangaram and
others in the Court of District Judge, Ghaziabad, which was subsequently after admission,
transferred to the Additional District Judge, Court no.6, Ghaziabad.

Relevant chronology of C.A. no.146 of 2011

4. Civil Appeal no.146 of 2011 was admitted for hearing on 16.9.2011 and thereafter, notices
were issued on the respondents fixing 15.11.2011 for disposal of stay application and the appellants
were directed to take steps within 7 days. On 28.11.2011 the appellants moved an application 17C2 for effecting service of summons through registered post, alongwith application 19-C2 for
effecting service through publication in newspaper, and the court fixed 30.11.2011 for disposal of
the above applications. On 30.11.2011, the plaintiff-appellants submitted before the court that
during the pendency of the suit the disputed property has been sold to the defendant-respondent
no.4 Subash Chand Gupta, as such none is taking interest on behalf of respondents no.1 to 3 and
respondent no. 4 was deliberately not appearing before the court whereas, he was aware of the
appeal. It was further submitted that the respondent was in a hurry to sell the disputed property,
because no injunction has been granted. On this ground, it was prayed by the appellants that they be
permitted to effect service on respondents through publication, which was supported by an affidavit
of appellant Ajay Kumar Sharma(paper no. 20-C).

5. The appellate court recorded a finding that previously also notices were sent on the
respondents but service could not be effected on them, hence, in the interest of justice, the court on
30.11.2011 permitted the appellants to effect service through publication on their expenses, and to
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
take steps within 4 days. The appellants application 19-C2 was accordingly disposed and the
appellate court fixed 21.12.2011 for hearing.

6. The appellate court on 16.2.2012 recorded that the service on respondents was sufficient by
publication in newspaper 21-C2, but none of them was present as such, the court proceeded exparte against the defendant/respondents and fixed 29.2.2012 for hearing ex-parte arguments of the
plaintiff-appellants.

7. The appellate court on 19.4.2012 recorded that the acknowledgement due(AD) of the
registered notices, which were sent to the respondents was not available on the record. Besides that,
there was no proof that notice was sufficient on the learned counsel of the respondents,who was
appearing in the lower court. The court also noted that the plaintiff 's suit was dismissed on merits,
which has been challenged in the appeal. In view of the above facts, the court concluded that it was
expedient that notices of hearing of appeal be sent to the learned counsel of the defendant/
respondents appearing in the trial court, in order to hear the appeal on merits and for this, the
appellants were directed to take steps within a week.

8. The appellate Court on 23.7.2012 recorded that notices have been again sent to the
respondents, but they are not present. The court fixed 13.8.2012 for ex-parte hearing of the appeal.
Ultimately,the appellate court heard the arguments of the appellants on 6.7.2019 and fixed
17.7.2019 for pronouncement of judgment. On 17.7.2019, the Civil Appeal was allowed ex-parte
and consequently, the decree passed in O.S. no. 544 of 1997 was set aside and the plaintiff 's suit
was decreed. The defendant/respondents were directed to handover the possession of the disputed
property within 3 months to the appellants, failing which, the appellants were held entitled to get it
in accordance with law, through court.

Proceedings of Miscellaneous Case no. 71 of 2019

9. This case was instituted by the defendant-appellant Subash Chand Gupta under Order 41
Rule 21 read with Section 151 CPC for recalling ex-parte judgment dated 17.7.2019 in C.A. 146 of
2011 on 14.8.2019, with the averments that on 2.8.2019 he received an envelope at his residence,
but at that time, he was in Dehradun for some necessary work, as such, he was not able to see the
envelope but after returning on 8.8.2019, when he opened the envelope, then he came to know that
the plaintiff/ appellants had filed a caveat under Section 148-A CPC in the High Court, Allahabad.
It was further averred that by going through the contents of the envelope he became aware that in
C.A. 146 of 2011 some order has been passed regarding which, the plaintiff has filed a caveat in the
High Court. It was further submitted that on 9.8.2019 he contacted his Advocate Braham Prakash
Nirbhya and showed him the envelope, then his Advocate inspected the record of the appeal on
13.8.2019 and then he became aware that the above appeal has been ex-parte decided. He further
averred that from the inspection of the above file, he became aware that no registered notices or
summons were ever served on him and service was deemed sufficient on him through publication
in a newspaper, which was not read by him, as such, he never became aware about the appeal. It
was further submitted that there was also no notice of the appeal on the learned counsel, who was
appearing for him in the trial court. It was further submitted that due to the ex-parte hearing of the
appeal, he has suffered severe loss and as such, the order dated 17.7.2019 passed in the appeal be
2 All. Subhaschandra Gupta Vs. Ajay Kumar Sharma & Ors.
1305
recalled and the appeal be heard and decided on merits, after hearing him. An affidavit of defendant
Subash Chand Gupta, was submitted with the above application.

10. The above application of the appellant was opposed by the plaintiffs, on the ground that
even in the O.S. 544 of 1997 after filing his written statement, the defendant/ appellant Subash
Chand Gupta remained absent in order to delay the disposal of the suit, which was also mentioned
in the judgment of the trial court. It was submitted by the plaintiffs, that the defendant/appellant
deliberately failed to appear in the appeal whereas, he was fully aware of the appeal. It was
admitted that service was effected on the defendant's through publication in the local newspaper,
which was paper no. 21-C on the record of the appeal. It was further submitted that since the
defendant was fully aware about the appeal as such, the application was not legally maintainable,
which was liable to be dismissed. An affidavit of plaintiff Ajay Kumar Sharma was filed in support
of the objection.

11. The appellate court by impugned order dated 23.5.2024 has rejected the
defendant/appellants application no.4-C under Order 41 Rule 21 CPC on the ground that it is not
the case of the defendant that summons and notices were sent on his wrong address because the
address mentioned by the defendant in his application was the same, as was mentioned in the plaint
and memo of the appeal. It was further concluded by the court that it can be presumed that notices
and summons sent to the defendant were duly served on him. Besides that, publication in the
newspaper was also effected. The court was of the opinion that since the defendant has not filed the
copy of the caveat,his assertion of knowledge through caveat was not reliable. Ultimately, the court
on the basis of conduct of the defendant presumed, that he was having notice of the appeal through
summon and publication, but he deliberately failed to appear before the appellate court, but
immediately after the passing of the ex-parte decree, has appeared before the court within a month,
which shows that he was having full knowledge of the appeal, but he deliberately failed to appear.
Aggrieved against the rejection of the above application, the defendant has filed this instant appeal
under Order 43 Rule 1(t) CPC.

Submissions of learned counsel of the parties

12. Shri Pramod Jain learned senior counsel for the defendant/appellant submitted that there is
no documentary proof on record to presume that registered notices were ever sent to the defendant/
appellant ,which were refused to be accepted by him;that summons sent through process server
were ever refused to be accepted by the appellant; the appellant was avoiding service of summon
sent through process server or registered post, as such, without the above evidence, the appellate
court could not have ordered the service to be effected on the appellant through publication in local
newspaper. Learned counsel submitted that substituted service through publication in a newspaper
can only be effected if, the court is of the opinion that the defendant is deliberately avoiding service
through normal mode. Learned counsel further submitted that ordinarily at least twice or thrice
registered notices or summons through process server are sent on the defendant/respondent, and
when it becomes evident that the defendant was trying to avoid the service,only then, it is ordered
that the substituted service be effected through publication in the local newspaper.
1306 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Learned counsel further submitted that in this case the defendant/appellant was resident of
Delhi, but the newspaper in which summons were published, was having no circulation in Delhi,
which was not read by the appellant, as such, even after publication, the appellant remained
unaware about the appeal and hence, could not appear before the court. Learned counsel submitted
that the appellate court even tried to effect service on the counsel of the appellant, who appeared in
the trial court, but there is no evidence that notice was duly served on the counsel. Learned counsel
submitted that since there was no service of notice or summon on either the appellant or his counsel
in the trial court, as such, no one could appear before the appellate court during the hearing of the
appeal, but still, the appellate court has presumed from the conduct of the appellant that he was
fully aware of the proceedings of the appeal and he deliberately did not appear before the appellate
court, which is a perverse finding. It was further submitted that without following the mandatory
provisions of Order V CPC, service has been presumed sufficient on the defendant's, which is
illegal. Learned counsel in support of his contention has relied upon the case law of :-

(1)Om Prakash vs. Prakash Chand and ors. Neutral Citation 2004 AHC 106(DB).

(2)K. Raja vs.V.Prabhakar, Neutral Citation 2024 KHC 49086 (Karnataka).

(3)Teharoon Chand vs. Surajmull Nagarmull AIR 1984 Cal 82(DB).

(4)Mrs.Payal Ashok Kumar Jindal vs. Capt. Ashok Kumar Jindal (1992)3 SCC 116.

(5)Smt.Yallawwa vs.Smt.Shantavva (1997)11 SCC 159.

14. Per contra, learned counsel for the plaintiff-respondents submitted that the
defendant/appellant was well aware of the proceedings of the appeal, who deliberately did not
appear before the appellate court in order to delay the disposal of the appeal, as such, the appellate
court has rightly rejected his recall application. Learned counsel further submitted that notices and
summons were duly sent to the appellant, and substituted service was also effected on him through
publication in local newspaper, which was in accordance with the relevant provisions of Order V
CPC, as such, no illegality was committed by the appellate court in hearing and deciding the appeal
ex-parte. It was further submitted that the appellate court has rightly noted the conduct of the
appellant, who deliberately avoided appearing before the appellate court during the pendency of the
appeal. It was further submitted that notice was also served on the learned counsel of the defendant,
who was appearing in the original suit before the trial court, but even the counsel deliberately failed
to appear before the appellate court.With these submissions, it was prayed that the appeal is
meritless and it be dismissed.

15. I have heard the learned counsel of both the sides and perused the impugned order, as well
as, the record of the lower court.

16. On the basis of the submissions of the learned counsel of the parties and the perusal of the
record, the following questions arise for determination in this appeal:-
2 All. Subhaschandra Gupta Vs. Ajay Kumar Sharma & Ors.
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(i) Whether the first appellate court was justified in allowing the plaintiff-appellants
application for effecting substituted service on the defendant-respondents?

(ii) Whether there was sufficient material on record to arrive at a conclusion that the
defendants-respondents were avoiding service and they were deliberately not appearing in the
appeal?

(iii) Whether the first appellate court was justified in hearing the appeal ex-parte without
affording the defendants-respondents due opportunity of hearing?

Relevant Statutory Provisions

17. For appreciating the controversy in issue, it will be appropriate that the relevant provisions
of Order V CPC are considered. The relevant provisions as mentioned in Order V Rule
9,12,15,17,19,20,21 CPC read as under:-

9. Delivery of summons by Court."(1) Where the defendant resides within the
jurisdiction of the Court in which the suit is instituted, or has an agent resident within that
jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the
Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one
of his subordinates or to such courier services as are approved by the Court.

(2) The proper officer may be an officer of a Court other than that in which the suit is
instituted, and, where he is such an officer, the summons may be sent to him in such manner as the
Court may direct.

(3) The services of summons may be made by delivering or transmitting a copy thereof by
registered post acknowledgment due, addressed to the defendant or his agent empowered to accept
the service or by speed post or by such courier services as are approved by the High Court or by
the Court referred to in sub-rule (1) or by any other means of transmission of documents (including
fax message or electronic mail service) provided by the rules made by the High Court:

Provided that the service of summons under this sub-rule shall be made at the expenses of
the plaintiff.

(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides
outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that the
service of summons on that defendant may be made by such mode of service of summons as is
referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of rule
21 shall not apply.

(5) When an acknowledgment or any other receipt purporting to be signed by the
defendant or his agent is received by the Court or postal article containing the summons is
received back by the Court with an
1308 INDIAN LAW REPORTS ALLAHABAD SERIES

endorsement purporting to have been made by a postal employee or by any person
authorised by the courier service to the effect that the defendant or his agent had refused to take
delivery of the postal article containing the summons or had refused to accept the summons by any
other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the
summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, pre-paid and duly sent by
registered post acknowledgment due, the declaration referred to in this sub-rule shall be made
notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other
reason, has not been received by the Court within thirty days from the date of issue of summons.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of
courier agencies for

the purposes of sub-rule (1).

12. Service to be on defendant in person when practicable, or on his agent. -Wherever it
is practicable, service shall be made on the defendant in person, unless he has an agent empowered
to accept service, in which case service on such agent shall be sufficient.

15. Where service may be on an adult member of defendant's family.- Where in any
suit the defendant is absent from his residence at the time when the service of summons is sought to
be effected on his at his residence 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 the summons on his
behalf, service may be made on any adult member of the family, whether male or female, who is
residing with him.

Explanation. "A servant is not a member of the family within the meaning of this rule.

17. Procedure when defendant refuses to accept service, or cannot be found.-Where the
defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or
where the serving officer, after using all due and reasonable diligence, cannot find the defendant,
who is absent from his residence at the time when service is sought to be effected on him at his
residence and there is no likelihood of his being found at the residence within a reasonable time
and there is no agent empowered to accept service of the summons on his behalf, nor any other
person on whom service can be made, the serving officer shall affix a copy of the summons on the
outer door or some other conspicuous part of the house in which the defendant ordinarily resides
or carries on business or personally works for gain, and shall then return the original to the Court
from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so
affixed the copy, the circumstances under which he did so, and the name and address of the person
(if any) by whom the house was identified and in whose presence the copy was affixed.

19. Examination of serving officer.-Where a summons is returned under rule 17, the
Court shall, if the return under that rule has not been verified by the affidavit of the serving officer,
and may, if it has been so verified, examine the serving officer on oath, or cause him to be so
examined by another Court, touching his proceedings, and may make such further enquiry in the
2 All. Subhaschandra Gupta Vs. Ajay Kumar Sharma & Ors.
1309
matter as it thinks fit; and shall either declare that the summons has been duly served or order such
service as it thinks fit.

20. Substituted service.-(1) Where the Court is satisfied 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, the Court shall order the
summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and
also upon some conspicuous part 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.

(1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a
newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the
defendant is last known to have actually and voluntarily resided, carried on business or personally
worked for gain.

(2) Effect of substituted service.-Service substituted by order of the Court shall be as
effectual as if it had been made on the defendant personally.

(3) Where service substituted, time for appearance to be fixed.-Where service is
substituted by order of the Court, the Court shall fix such time for the appearance of the defendant
as the case may

require.

21. Service of summons where defendant resides within jurisdiction of another Court.-
A summons may be sent by the Court by which it is issued, whether within or without the State,
either by one of its officers [or by post or by such courier service as may be approved by the High
Court, by fax message or by Electronic Mail service or by any other means as may be provided by
the rules made by the High Court] to any Court (not being the High Court) having jurisdiction in
the place where the defendant resides.

Case law referred and considered

18. A Division Bench of this Court in Om Prakash (supra) after considering Order V Rule 20
CPC held as under:-

" that substituted service is permissible, provided the courts record the reasons after
being fully satisfied that the service cannot be effected in an ordinary manner and it cannot be
taken as a matter of right. Party cannot ask the court that it wants to serve the
defendant/respondent by substituted service. The courts have deprecated the practice of filing such
an application and categorically held that substituted service is not permissible unless the court
records the reasons reaching the conclusion that it is not possible to serve the
defendant/respondent in an ordinary manner."
1310 INDIAN LAW REPORTS ALLAHABAD SERIES

19. A Division Bench of the Calcutta High Court in Teharoonchand (supra), while
considering service of summons under Order V Rule 20 CPC held as under:-

"Before issuing summons under Order V, Rule 20 of the Code, the court is to be satisfied
that the defendant is keeping out of the way for the purpose of avoiding service, or that for any
other reason summons cannot be served in the ordinary way. Before such satisfaction, the court
has to consider the case carefully having regard to the nature of the earlier attempts made for the
service of summons. Mere assertion of the plaintiff in this respect to attract the provisions of Order
V, Rule 20 of the Code will not be enough. Only when the court is satisfied from the materials on
record 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 summons cannot be served in the ordinary way, the
court will be entitled to order service of summons under Order V, Rule 20 of the Code."

20. A Single Judge Bench of the High Court of Karnataka in the case of K. Raja (supra) has
held that the provisions of Order V Rule 17 and Order V Rule 20 of the Code, are to be read
conjointly. It was held that without following the mandatory procedure prescribed in Order V Rule
17, provisions of Order V Rule 20 of the Code cannot be invoked.

21. Similarly, a Single Judge Bench of the High Court of Madhya Pradesh in the case of
Virendra Kumar Sondhi vs Sudesh Kumar Suri and others 2022 SCC OnLine MP 1304, held as
under:-

"14. However, the substituted service cannot be ordered in a routine manner. Before
resorting to the provision of Order 5 Rule 20 of C.P.C., it is obligatory for the Court to record its
satisfaction that the defendant was keeping out of the way for the purpose of avoiding service and
the summons could not be served in ordinary manner."

22. The Apex Court in the case of Mrs.Payal Ashok Kumar Jindal (supra), where in the
matrimonial petition filed by the respondent husband for divorce, registered notices sent to the
appellant were returned with the postal endorsement that she could not be found on the given
addresses, has held that :-

".....there is no material on the record to reach a conclusion that the appellant refused to
receive the notices. After the notices sent by registered post were received back, the Family Court
did not make any attempt to serve the appellant through the process of the Court. Under the
circumstances, resort to the substitute service by way of publication in the newspaper was not
justified. We are, therefore, of the view that there was sufficient cause for the non-appearance of
the appellant in the matrimonial petition before the Family Court."

23. The Apex Court in the case of Smt.Yallawwa (supra), while upholding the order of the
High Court setting aside the ex-parte decree of divorce passed against the respondent wife, was
considering whether in the matrimonial proceeding, service was sufficient on the wife, held as
under:-
2 All. Subhaschandra Gupta Vs. Ajay Kumar Sharma & Ors.
1311

"The learned counsel for the respondent was also justified in submitting that the trial
court could not have almost automatically granted the application for substituted service without
taking steps for serving the respondent by ordinary procedure as laid down by Order V Rules 12,15
and 17 CPC. It must be kept in view that substituted service has to be resorted as the last resort
when the defendant cannot be served in the ordinary way and the court is satisfied 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. In the present
case, it appears that almost automatically the procedure of substituted service was resorted to."

24. The Apex Court in the case of Smruti Pahariya vs.Sanjay Pahariya (2009)13 SCC 338(by
3 Judges), while upholding the judgment of the High Court setting aside the ex-parte divorce
decree granted to the appellant wife, held as under:-

"12......... Looking at the service return, the Court found that service was not a proper one
and the Court was also not satisfied with the endorsement of the courier. Under such
circumstances, the Courts direction on the prayer of the appellant-wife, for substituted service
under Order 5 Rule 20 of the CPC is not a proper one. Direction for substituted service under
Order 5 Rule 20 can be passed only when Court is satisfied ''that there is reason to believe that the
defendant is keeping out of the way for the purpose of evading service, or that for any other reason
the summons cannot be served in the ordinary way.''

13.In the facts of this case, the Court did not, and rather could not, have any such
satisfaction as the Court found that the service was not proper. If the service is not proper, the
Court should have directed another service in the normal manner and should not have accepted the
plea of the appellant-wife for effecting substituted service. From wife's affidavit asking for
substituted service, it is clear that the servant of the respondent-husband intimated her advocate's
clerk that respondent-husband was out of Bombay and will be away for about two weeks. However,
the appellant- wife asserted that the respondent-husband was in town and was evading. But the
Court on seeing the service return did not come to the conclusion that the husband was evading
service. Therefore, the Court cannot, in absence of its own satisfaction that the husband is evading
service, direct substituted service under Order 5 Rule 20 of the Code."

25. The Apex Court in the case of Messers Neerja Realtors Private Limited vs.Janglu (Dead)
through LR's (2018) 2 SCC 649 (by 3 Judges), while upholding the judgment of the High Court
setting aside the ex-parte decree of specific performance granted in favour of the appellant, held as
under:-

"16.Evidently as the report of the bailiff indicates, 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 were affixed on a conspicuous part of the house, at the address mentioned in the
summons. There was a breach of the provisions of Order V Rule 17. When the application for
substituted service was filed before the Trial Court under Order V Rule 20, a cryptic order was
passed on 2 September 2011. 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
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
Evidently the Trial Court failed to apply its mind to the requirements of Order V Rule 20 and
passed a mechanical order. Besides this, as observed by the learned Single Judge of the High
Court, the Trial Judge ignored the provisions contained in Chapter III of the Civil Manual issued
by the High Court on its appellate site for the guidance of civil courts and officers subordinate to
it..........

17.The submission that 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 really begs the question.
There was a clear breach of the procedure prescribed in Order V Rule 17 even antecedent thereto.
Besides, the order of the Court does not indicate due application of mind to the requirement of the
satisfaction prescribed in the provision. The High Court was, in these circumstances, justified in
coming to the conclusion that the ex-parte judgment and order in the suit for specific performance
was liable to be set aside."

Conclusion by this Court

26. From the above law laid down by the Apex Court and High Courts, it is evident that
substituted service under Order V Rule 20 of the Code, is an exception to the normal mode of
service and it can only be ordered by the Court if, it is of the belief, on the basis of material on
record, 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 manner. It is further evident that
the Court has to apply its mind to the facts and circumstances of the case and then it has to record
its satisfaction that service on the defendant is not possible by normal mode and only then, the
plaintiff/appellant can be permitted to effect substituted service by publication in local newspaper.

27. It is further evident that the Court has also to consider having regard to the nature of the
earlier attempts made for the service of summons and only when the Court is satisfied from the
material on record, 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, summons cannot be served in the
ordinary way, the Court will be entitled to order service of summons under Order V Rule 20 of the
Code.

28. It is further evident that from the evidence on record it is to be considered by the Court
how many times registered post acknowledgement due (AD) notices were sent on the defendant
/respondent; what was the postal endorsement made on those undelivered notices; whether
acknowledgement due (AD) was received or not; whether process server went at the residence
/establishment of the defendant / respondent to serve the summon; how many times the process
server went to the residence /establishment of the defendant/respondent; who was present at the
residence/establishment of the defendant/respondent; whether the defendant/respondent was
personally present who refused to receive the summons or whether his/her family
members/servants/employees were present, who in his/her absence refused to receive the summons;
whether 2 witnesses of such refusal were noted and their signed statement was duly recorded by the
2 All. Subhaschandra Gupta Vs. Ajay Kumar Sharma & Ors.
1313
process server in his report to substantiate his version that he went to the residence/establishment of
the defendant/respondent but he/she was not present or he/she was present but he/she deliberately
failed to receive the summon.

29. It is further evident that when the defendant/respondent resides outside the local
jurisdiction of the Court then, service can also be effected on him, through the Court, in whose
jurisdiction he /she resides/carries on business, in accordance with Order V Rule 21 CPC.

30. It is further evident that as per Order V Rule 17 CPC, if the defendant/respondent is not
found at his residence/establishment or refuses to accept the summons, the process server shall
affix the copy of the summons on the outer door or some other conspicuous part of the house in
which he/she ordinarily resides or carries on business or personally works for gain, and shall then
return the original summon to the issuing Court, with his report that he has so affixed the copy and
the circumstances under which he did so, and the name and address of the persons (if any) by
whom the house was identified and in whose presence the copy was affixed.

31.