What is substituted service? When can it be ordered and how can be effected? Discuss with reference to the provisions of the Code of Civil Procedure, 1908. Or What do you mean by Substituted service?

Question: What is substituted service? When can it be ordered and how can be effected? Discuss with reference to the provisions of the Code of Civil Procedure, 1908. Or What do you mean by Substituted service? [UPHJS 2018]

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Answer

Order V, Rule 20(1), of the Code of Civil Procedure, provides for the mode of substituted service upon the defendant. The provision states that when the Court is satisfied that the defendant is keeping out of the way for the purpose of avoiding service, or that, for any other sufficient reason the summons cannot be served in an ordinary way, service may be effected by affixing a copy of the summons in some conspicuous place in the Court house, and also in some conspicuous place of the house, if any, in which the defendant is known to have last resided, or carried on a business, or personally worked for gain, or in such other manner as the Court thinks fit.

However, there is a duty on the Plaintiff duty to comply before obtaining orders for substituted service. It is the plaintiff’s duty to use his best endeavours to discover the defendant’s residence and to satisfy the Court that he has done so and that the defendant is evading service or for any other sufficient reason cannot be served in an ordinary way. It is only after all the other prescribed methods of effecting service have been tried and have failed that it is open to the Court to exercise the discretionary power conferred by the concluding words of Order V, Rule 20(1), of the Code.

There are two modes of substituted service as given under Rules 17, 19 and 20 of the Order. These are:

1. If the defendant or his agent refuses to acknowledge or sign the receipt of the summons, or if the officer serving the summons reasonably believes that the defendant is not present at his residence and will not be found within a reasonable time, and moreover if there is no agent to receive summons on his behalf, he may affix the copy of the summons on the door or any conspicuous part of his house.

• In this case, the serving officer has to make a report stating the reasons for affixing the summons, the circumstances, the name and address of the person who helped him and the witnesses to affix the summons.
• The court can declare that the summons has been issued if it is satisfied with the report of the officer.

2. If the defendant is deliberately avoiding service and the court has a reason to believe so, it may affix the summons in some conspicuous place in the court and house of the defendant where he used to reside, carry on business or work for somebody.

In the case of Yalllawwa v. Shantavva (1997), the Supreme Court held that this mode of service of summons is not an ordinary mode and must not be used normally. It must only be used in exceptional cases and treated as the last option.

According to Rule 20, if a court order to advertise the summons in the newspaper, then it must be done in a local newspaper where the defendant lived, had a business, or worked. This service is an effective option to serve summons even if the defendant is not reading the newspaper (Sunil Poddar v. Union Bank of India, 2008).

Before issuing the summons through this mode of service, the court must give the defendant a reasonable time to appear before the court. In another case, the State of Jammu and Kashmir v. Haji Wali Mohammad, 1972 AIR 2538, the Supreme Court held that if a summon does not fulfil the requirements of Rule 19 of Order 5 under the Code, then such service of summons is not in accordance with the law.

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