Court may allow substituted summons through WhatsApp, e-mail etc, Bombay HC [Read Judgment]

The Bombay High Court recently observed that modern, internet-based media such as WhatsApp may be considered for issuing substituted summons to parties in suits..The observation was made by Justice Mridula Bhatkar while dismissing an appeal filed against a district court verdict..The appellant/petitioner in the case had initially brought a suit for specific performance against the respondent/defendant in 2009. In 2011, the Court proceeded to pass an ex-parte order, after the defendant failed to appear before the Court..Two years later, the defendant filed an application to set aside this order, along with an application for condonation of delay. The trial court rejected the application. However, in 2017, the district court set aside the 2011 ex-parte decree, allowing an appeal filed by the defendant. This prompted the plaintiff to prefer an appeal before the Bombay High Court..The High Court noted the defendant’s submission that the summons was served to an address he had not been residing in for years. Therefore, he was not aware of the proceedings initiated against him..Order 5 of the Code of Civil Procedure (CPC) deals with summons. When ordinary modes of serving summons are unsuccessful, Rule 20 of Order 5 allows summons by substituted services..For example, summons may be affixed in conspicuous places where the defendant is said to reside or work, or the summons may be advertised in the newspaper circulated in the area where the defendant works/resides. Further, this rule also confers discretionary powers on the Courts to serve such substituted summons in any other manner it deems fit..The Court also observed that this discretionary power may also be used to direct the issuance of summons through WhatsApp, e-mail and courier..“Thus, in sub-rule (i) and (ii), the substituted service means fixing the copies of the summons on different place as mentioned in the Rule. However, the sub-rule(iii) gives further option that the summons can be served in such other 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.”.In the instant case, the Court noted that had the substituted summons been successful, then the 2011 ex-parte decree would have been valid. However, given the defendant’s submission that he had not resided at the given address for years, the Court opined that a more realistic view has to be taken..“By accepting that the substituted service is deemed to be a good service, then passing exparte decree is a correct legal step taken by the Court as per the procedure. .However, the moment the defendant acquires the knowledge of the proceedings and he approaches the Court and the fact is brought before the Court that he really never had actual real knowledge, then even though there is a procedural compliance by the plaintiff, the Court has to take realistic and just view and not to limit itself in the procedural wrangles.”.This observation was also made bearing in mind that the service of summons is not an empty formality, rather it is intended to ensure that the defendant has knowledge of the proceedings initiated..“Therefore, there may be a service laid down as per the procedure, however, still there is no communication of the proceedings to the other party and, therefore, the knowledge is absent. .Thus, satisfaction based on instances of the compliance of the proceedings as a mere formality cannot be a correct approach to interpret the principle behind the service. The deeming fiction is created in law to fill up the gap where the procedural law falls short.”.Therefore, the Court confirmed the district court verdict which had set aside the 2011 ex-parte order..While dismissing the appeal, the High Court has directed the trial court to decide the suit by the end of this year..Last year, it was Justice Gautam Patel of the Bombay High Court who set the ball rolling for the use of such unconventional methods when he allowed the service of summons through WhatsApp in a copyright case. Following suit, the Delhi High Court allowed the service of summons through digital means in a defamation matter..The trend was followed in March this year, when a Delhi court allowed the service of summons through WhatsApp in a criminal case. In May, another court in the capital held that a double tick would prima facie show that a summons served through WhatsApp has been duly delivered..Read the Judgment: