Dismissed

Prakash Kunhipaily Paul v. Anila Mol Augustine

Kerala HC13 Sept 2018OP (FC)/206/2018

Case brief

AI extract

What is this about?

Petition under Article 227 challenging the Family Court's refusal to record that service of summons on the respondent's mother by registered post was proper. The High Court held that Order V Rule 15 CPC contemplates personal service by the process server, and that service by registered post on an adult family member is not valid service. Dismissed.

What the court decided

AI extract

Prakash Kunhipaily Paul Vs Anila Mol Augustine — Matrimonial and Divorce | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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THURSDAY ,THE 13TH DAY OF SEPTEMBER 2018 / 22ND BHADRA, 1940

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OP (FC).No. 206 of 2018

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(AGAINST THE ORDER DATED 21.12.2017 IN I.A.NO.2190/2017 IN O.P.NO.232/2015 ON THE FILES OF FAMILY COURT, THALASSERY, KANNUR DISTRICT)

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PETITIONER/PETITIONER:

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PRAKASH KUNHIPAILY PAUL AGED 42 YEARS, S/O. KUNHIPAILY @ PAILY, KIZHAKKEYIL HOUSE, 7TH MILE, P.O.KUTTIKOL, TALIPARAMBA, KANNUR DISTRICT, PIN - 670 562.

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BY ADV. SRI.SUNIL NAIR PALAKKAT

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RESPONDENTS/RESPONDENTS:

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1 ANILA MOL AUGUSTINE AGED 40 YEARS, D/O. AUGUSTINE, PERMANENT RESIDENT OF MULLAKUNNEL HOUSE, MANKUVA P.O., IDUKKI DISTRICT, KERALA - 685 604 NOW RESIDING AT 31, ASHFIELD, LETTERKENNY, DONEGAL COUNTRY, IRELAND.

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2 DR. ANANTH CHIDAMBARAM AGED 42 YEARS, MEDICAL PRACTITIONERS, ASST.PROFESSOR, NO. B-20, STAFF QUARTERS, SRI. MANAKKULA VINAYAGAR, MEDICAL COLLEGE, KALITHEERTHA KUPPAM, MADAGADIPET, PUTHUSSERI - 605 107.

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3 ANIL AUGUSTINE MULLAKUNNEL, S/O. KULLAKUNNEL AUGUSTINE AND MINI AUGUSTINE, RESIDING AT MULLAKUNNEL HOUSE, MANKUVA P.O., IDUKKI DISTRICT, KERALA, PIN - 685 562.

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BY ADV. SRI.S.JIJI

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 30.08.2018, THE COURT ON 13.09.2018 PASSED THE FOLLOWING:

O.P.(FC) No.206/2018

'CR'

JUDGMENT

R.Narayana Pisharadi, J

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Can the service of summons by registered post acknowledgment due on an adult member of the family of the defendant be treated as valid service on the defendant? This is the crucial question that falls for determination in this case.

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The petitioner is the husband and the 1^st respondent is the wife. The petitioner has instituted O.P.No.232 of 2015 in the Family Court, Thalassery for granting a decree of declaration that the marriage between him and the 1^st respondent solemnised under the Special Marriage Act is null and void.

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The 1^st respondent is working and residing in Ireland. The lower court issued summons to the 1^st respondent by registered post to her address in Ireland and also in Idukki district. The acknowledgment card in respect

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of the summons sent to the 1^st respondent in the address in Ireland was returned without her signature. The acknowledgment card in respect of summons sent to her in the address in Idukki district was returned with the signature purported to be made by her mother.

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Meanwhile, summons was also issued to the 1^st respondent in her Ireland address through the Joint Secretary, Ministry of Law and Justice, New Delhi. The result of service of the same is awaited. But, according to the petitioner, the 1^st respondent has now acquired citizenship of Ireland.

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The petitioner then made an application as I.A.No.2190 of 2017 before the Family Court, praying that the court may record that the service of summons effected on the mother of the 1^st respondent is proper. Relying upon the decision of this Court in Thomas Joseph v. Catholic Syrian Bank (1998 (1) KLT 986) the lower court found that, service of summons on the mother of the 1^st respondent cannot be treated as proper service on the 1^st

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repondent. Accordingly, the application I.A.No.2190 of 2017 was dismissed. The aforesaid order is challenged in this Original Petition filed under Article 227 of the Constitution of India.

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Heard learned counsel for the petitioner.

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Sub-section (1) of Section 10 of the Family Courts

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Act, 1984 clearly states that, subject to other provisions in that Act and the Rules, provisions in the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') and of any other law for the time being in force, shall apply to suits or proceedings before the Family Court, other than the proceedings under Chapter IX of the Code of Criminal Procedure. It is also stated that a Family Court shall be deemed to be a civil court for the purposes of the provisions of the Code and shall have all the powers of such court. Therefore, the procedure for service of summons in suits instituted before a Family Court is governed by the provisions of the Code.

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Service of summons is dealt with in Sections 27

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to 29 and Order V the Code. Section 27 of the Code provides that, where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed.

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Rules 9 to 30 of Order V of the Code deal with service of summons. Rule 19A provided for simultaneous issue of summons for service by post in addition to personal service. But, Rule 19A which was inserted by Act 104 of 1976, stands deleted with effect from 01.07.2002 by Act 46 of 1999. However, Rule 9 was substituted by Act 22 of 2002. Sub-rule (1) of Rule 9 provides that, where the defendant resides within the jurisdiction of the court in which the suit is instituted, or has an agent residing 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

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the court. Sub-rule (3) of Rule 9 provides that, service of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or to his agent empowered to accept the service or by speed post. Sub-rule (4) of Rule 9 provides that, 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.

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On interpretation of the abovementioned provisions, in Razack Trading Company v. J.K.Industries Limited (2003 (1) KLT 743) this Court held that, a court can order service of summons to a person residing outside its jurisdiction by registered post with acknowledgment due.

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Sub-rule (5) of Rule 9 of Order V states about the situations where summons sent to the defendant by

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registered post acknowledgment due can be declared as duly served on the defendant. This rule provides that, when an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the court or when postal article containing the summons is received back by the court with an endorsement purporting to have been made by the postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The proviso to sub-rule (5) of Rule 9 states that, where the summons was properly addressed, pre-paid, and duly sent by registered post acknowledgment due, such declaration 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 the summons. This rule clearly indicates that, when the summons is sent to the defendant by registered post

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acknowledgment due, it can be declared to have been duly served on the defendant under three circumstances: (1) the acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the court or (2) the postal article containing the summons is received back by the court with an endorsement purporting to have been made by the postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or (3) the acknowledgment is not received by the court within thirty days from the date of issue of the summons.

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In the instant case, the acknowledgment received by the lower court in respect of the summons issued to the 1^st respondent by registered post in her address in Ireland does not bear her signature. The acknowledgment received in respect of summons issued to the 1^st respondent by registered post in her address in Idukki, bears signature purported to have been made by her mother. There is nothing to show that the 1^st respondent had authorised her

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mother to receive the postal article on her behalf. There is nothing to show that the mother of the 1^st respondent is her duly authorised agent. Therefore, the court cannot make a declaration under sub-rule (5) of Rule 9 of Order V of the Code, that the summons has been duly served on the 1^st respondent.

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Learned counsel for the petitioner contended that, the service of summons, which was sent by registered post, on the mother of the 1^st respondent amounts to proper and valid service of summons, by virtue of the provision contained in Order V, Rule 15 of the Code. Order V, Rule 15 of the Code reads as follows:

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"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 him 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

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female, who is residing with him."

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A bare reading of the aforesaid provision indicates

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that, before serving summons on an adult member of the family of the defendant, all efforts should be made to serve the summons on the defendant himself at his residential address. Possibility of his presence at his residence within a reasonable time need to be ascertained. It shall be ensured that there is no likelihood of the defendant being found at the residence within a reasonable time. It shall also be ensured that the defendant has not empowered any agent to accept the summons on his behalf. It is also necessary to ensure that the adult member of the family of the defendant is a person residing with the defendant.

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When the postal article containing the summons is to be delivered to the defendant or to his agent, such person may either accept it or decline to accept it. In either case there is no difficulty. Such acceptance or refusal can be treated as service on the defendant, as provided under subrule (5) of Rule 9 of Order V of the Code. The difficulty is where the postman calls at the address mentioned and is

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unable to contact the defendant or his agent. All that he can then do is to return it to the sender. When the postman is unable to deliver it on his first visit, the general practice is to attempt to deliver it on the next one or two days, before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter or article until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the addressee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a court under Order V, Rule 15 of the Code (See M/s Madan and Company v. Wazir Jaivir Chand : AIR 1989 SC 630 ).

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If the provision contained in Order V, Rule 15 of the Code is read independently, it would appear that it is applicable in a case where the summons is sent to the defendant by registered post. But, if that provision is read

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alongwith the other provisions relating to service of summons, it would be clear that it does not contemplate service of summons on an adult member of the family of the defendant by the postman.

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As noticed earlier, sub-rule (5) of Rule 9 of Order V of the Code enumerates the circumstances under which the court shall make a declaration regarding due service of summons on the defendant which has been sent by registered post acknowledgment due. Sub-rule (5) of Rule 9 of Order V of the Code does not provide that when an acknowledgment or any other receipt purporting to be signed by an adult member of the family of the defendant is received, the court issuing summons shall declare that the summons had been duly served on the defendant.

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Order V, Rule 10 of the Code deals with the mode of service of summons. It states that service of summons shall be made by delivering or tendering a copy thereof. Order V, Rule 16 of the Code provides that, where the serving officer delivers or tenders a copy of the summons to

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the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. Evidently, the expression “other person” in Rule 16 refers to an adult member of the family of the defendant. Acknowledgment of service of summons referred to in this provision shall be obtained by making an endorsement on the original summons. If that be so, the provision contained in Order V, Rule 15 of the Code does not contemplate service of summons sent by registered post on an adult member of the family of the defendant. It is also to be noted that as per the provision contained in Rule 18 of Order V of the Code, the serving officer shall, in all cases in which the summons has been served under Rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the

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person served and witnessing the delivery or tender of the summons. This rule also indicates that service of the postal article containing the summons on an adult member of the family of the defendant by the postman is not contemplated by law.

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In this context, the provision contained in Order V, Rule 17 assumes significance. It contains the procedure to be followed when the defendant refuses to accept service, or cannot be found (emphasis supplied). It also deals with a contigency where the agent of the defendant or such other person refuses to sign the acknowledgment. Order V, Rule 17 of the Code provides that where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, 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

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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. This provision is to be read in continuation of the provisions contained in Rules 15 and 16 of Order V of the Code.

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Therefore, on a conjoint reading of the provisions contained in Rules 9 to 30 of Order V of the Code dealing with service of summons, it can be found that service of summons on an adult member of the family of the defendant, which is contemplated under Order V, Rule 15 of

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the Code, is personal service of the summons by the process server of the court. Service of the summons, which was sent to the defendant by registered post, on an adult member of the family of the defendant, cannot be treated as valid service of the summons on the defendant.

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It can be contended that personal service of summons on an adult member of the family of the defendant and service of the postal article containing the summons on him practically make no difference. But, the legal consequences differ. As in the instant case, in case of service of the summons sent by registered post, the acknowledgment card may only contain the name and signature of the person who has received the postal article. Sometimes, the acknowledgment card may only contain the signature of the person who has received the postal article. Then, the court would not be in a position to ascertain whether the service was actually effected on an adult member of the family of the defendant. The court will not be in a position know the relationship between the

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defendant and the person who received the summons. The court may not also know whether the person who received the summons was actually a person who was residing with the defendant. There may not also be any assurance that the postman had made repeated and earnest efforts to find out the defendant and to serve the summons on him. The court will not know whether the postman had ensured that there was no likelihood of the defendant being found at the residence within a reasonable time. On the other hand, in case of personal service of summons on an adult member of the family of the defendant, the report of the process server would contain such details and the court would be in a position to decide whether the summons was duly served or not.

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The Karnataka High Court had occasion to notice the inadequacies of service of summons on an adult member of the family of the defendant by the postman. ln Kanthamma @ Kadiramma v. Chikkanasarappa (ILR 2003 Karnataka 3714) , the Karnataka High Court

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observed that, the process staff of the courts perhaps may be aware of the provision contained in Order V, Rule 15 of the Code. But when the notice is sent by registered post, a postman who is not well versed with the provisions of the Code invariably returns the same with endorsement "party not present or not available". Therefore, that Court thought it appropriate to issue necessary instructions to the postman concerned to serve the summons sent by registered post on any adult member of the family of the party/addressee, if he is not available for personal service. The Court observed that, such instructions can be given by using rubber stamp impression on all registered covers containing court notices/summons. This ruling made by the Karnataka High Court does not contain any discussion on the validity of service of summons through registered post on an adult member of the family of the defendant.

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The Madhya Pradesh High Court has considered a similar issue in the case Prachi Soni Vs. Jai Prakash Sarraf (judgment dated 09.09.2015 in F.A. No.

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150/2015). It was also a case of divorce. The Court held as follows:

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“It is clear from the perusal of Rule 9 of Order V of the Code of Civil Procedure that service of summons upon the defendant by registered post acknowledgment due is permissible; however, such service is required to be effected upon the defendant or his agent empowered to accept the service. ..... In the case at hand, admittedly, the acknowledgment that has been received back, is not signed by either the defendant Prachi Soni or her agent empowered to sign such acknowledgment on her behalf. It is admittedly signed by one Amit Soni. There is no endorsement made on the acknowledgment by the postal employee effecting service, disclosing relationship of Amit Soni with the defendant. ... The fact that Amit Soni is brother of the non-applicant is to be gathered from other material available on record. .... However, it may be noted that rule 15 relates to service of notice by ordinary mode, it cannot be made applicable to the service of notice by registered post acknowledgment due. In aforesaid view of the matter, it appears that learned trial Court, in the most casual and perfunctory manner has assumed that the summons of the proceeding was duly served upon non-applicant Prachi

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Soni. We can't help observing here that a decree of divorce may potentially have the most devastating consequences for a party; therefore, the Court has to be extremely circumspect while recording a finding that notice has been duly served upon the defendant and proceeding ex-parte. The court must diligently examine the service report and record a clear finding that the notice has been duly served upon the defendant keeping in view the relevant rules of Order V of CPC, in a case for a decree of divorce before proceeding ex-parte against the defendant. If such orders are passed in a mechanical manner, without due examination of service report and application of mind, it may seriously impact the life of not only the parties to litigation but also the life of the person whom party obtaining such divorce, may subsequently marry” ( emphasis supplied) .

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24. In C.M. Nagaraj v. Thiruammal ( 1987 (1) MLJ

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395) , the Madras High Court has examined the same issue in the light of the provisions contained in Rule 19A of Order V (the provision which was in existence then which dealt with service of summons by registered post) and held as follows:

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“According to Rule 15, the service is a personal service, while under Rule 19A, it is an additional service sent by post. While in Rule 15, a service on agent empowered to accept the service of summons on appellant's behalf or on any adult member of the family whether male or female will be treated as good service, according to Rule 19A unless the summons sent by registered post is acknowledged by an agent empowered to accept the service at the place where the defendant or his agent actually and voluntarily resides or carries on business or personally works for gain, there will be no service of summons on the defendant. In this case, it is true that the summons was served on the appellant's wife, but then the Court below rejected the respondents' contention that the wife was given the authorisation by her husband to accept any postal article. ....... If so, I have to proceed on the basis that the appellant's wife had no authority to accept the postal article addressed to her husband and sent by registered post. It would immediately follow that she was not an authorised agent to accept the service of summons as per mandate in Rule 19A. Learned Counsel for the respondents would point out that both Rules 15 and 19A had to be read

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harmoniously and in such a case, even if the registered post is acknowledged by the wife who had no authority to accept such postal article, still it is a service on the adult member of the family, viz., appellant's wife and therefore, it is good service. I am unable to agree. For, different prescriptions are prescribed in Rules 15 and 19A. This will immediately demonstrate that the Legislature has deliberately two different standards of service vis-a-vis the appellant's agent. Under Rule 15, it is a personal service and therefore, the Legislature thought it wise that in such a case if summons is served on any adult male or female member of the family subject to the two conditions set out therein, the service will be treated as good service. As regards Rule 19A summons is sent by registered post. Therefore, the Legislature in its wisdom thought that unless such registered article sent by post is accepted by an authorised agent, the service shall not be treated as service on the defendant. Above all, Rule 19A contemplates issue of simultaneous summons along with summons for service in the manner provided in Rules 9 to 19. This also clearly indicates that Rules 9 to 19 and 19A cover two different fields. Thus unless it is established that the appellant's wife had the authority to

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accept such postal article, there can be no valid service as visualized under Rule 19A. I have already referred to the finding of the learned Judge that she is not so authorised. If so, there is no escape from the conclusion that there is no valid service of summons on the appellant-defendant”.

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(emphasis supplied)

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We are in respectful agreement with the views

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expressed by the Madhya Pradesh and Madras High Courts in this regard.

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The lower court has relied upon the decision of this Court in Thomas Joseph v. Catholic Syrian Bank (1998 (1) KLT 986) to dismiss the application I.A.No.2190 of 2017 filed by the petitioner. The decision in Thomas Joseph (supra) has no direct application to the present case. It was a case in which the validity of service of notice on a judgment debtor in execution proceedings was considered. In that case, notice addressed to one of the judgment debtors was personally served on his mother who was also another judgment debtor in the case. The mother was not residing with the person to whom the notice was

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addressed. Therefore, it was held that there was no valid service of notice on the judgment debtor to whom the notice was issued.

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At this juncture, we may notice the subsequent decision by a Division Bench of this Court in Abbas v. Moideen Kunhi (2014 (3) KHC 734: 2014 (3) KLT 872) which would have been directly applicable to the facts of the present case, if personal service of summons had been effected on an adult member of the family of the 1^st respondent. In that case, the 2^nd defendant was working in Saudi Arabia. The summons issued to the 2^nd defendant was personally served on his father who was the 1^st defendant in the case and who was residing in the same house. This court held that there was valid service of summons on the 2^nd defendant as provided under Order V, Rule 15 of the Code. This Court observed as follows:

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“It can be seen that summons was served on the father of the 2nd defendant, who is an adult member of the family of the 2nd defendant, in the residential address of 2nd defendant, only after getting reliable

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information that the 2nd defendant was working in Gulf countries and was not likely to be available within a reasonable time. Therefore, the service of summons as per Ext. C1 was perfectly in accordance with the provisions contained in Rule 15 of Order V”.

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After noticing the decision in Thomas Joseph (supra), the Division Bench proceeded to hold further as follows:

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“In the present case it can be seen that service was effected at the residential address itself, when the 2nd defendant was admittedly abroad. The appellant did never have a case that he was likely to be available in the address given, within a reasonable time. Moreover, it was the father of the 2nd defendant - an adult member of the family, who accepted the summons along with an assurance that he will inform the party. These matters find place in the report of the process server. In such circumstances, it cannot be said that there should have been a further enquiry into the matter in order to declare the service on 2nd defendant as proper”.

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However, in the instant case, there was no

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personal service of the summons on an adult member of the family of the 1^st respondent. Therefore, the decision in Abbas (supra) cannot be relied upon to find that there was

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valid service of summons on the 1^st respondent.

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Learned counsel for the petitioner has submitted

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that it is high time that the courts make use of advancement of science and technology to avoid or minimize procedural delays. In this connection we may notice that in Central Electricity Regulatory Commission v. National Hydroelectric Power Corporation Limited : (2010) 10 SCC 280 , the Apex Court directed that in commercial cases, service of notice may be effected by e-mail. In Indian Bank Association v. Union of India : AIR 2014 SC 2528 , the Apex Court directed that summons to the accused in cases under section 138 of the Negotiable Instruments Act shall be sent to their e-mail address. In Meters and Instruments

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Private Limited v. Kanchan Mehta : AIR 2017 SC 4594 , the Apex Court has devised a mechanism by which cases under section 138 of the Negotiable Instruments Act could be disposed of even without the apperance of the accused in the court.

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In Kross Television India Pvt. Ltd v. Vikhyat Chitra Production (MANU/MH/1228/2017) , the Bombay High Court took notice of the fact that the defendants in the case had notice of the listing of the case through e-mail and WhatsApp messages sent to them. Then, the Court held as follows:

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“I do not see what more can be done for the purposes of this Motion. It cannot be that our rules and procedure are either so ancient or so rigid (or both) that without some antiquated formal service mode through a bailiff or even by beat of drum or pattaki, a party cannot be said to have been 'properly' served. The purpose of service is put the other party to notice and to give him a copy of the papers. The mode is surely irrelevant. We have not formally approved of email and other modes as acceptable simply because there are inherent limitation to proving service. Where an alternative mode is used, however, and service is shown to be effected, and is acknowledged, then surely it cannot be suggested that the Defendants had 'no notice'. To say that is untrue; they may not have had service by registered post or through the bailiff, but they most certainly had notice. They had copies of the papers. They were told of the next date. A copy of

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the previous order was sent to them. Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of that evasion”.

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We have adverted to the decisions mentioned above in the context of the submission made by the learned counsel for the petitioner regarding use of technology by the courts to avoid procedural delays, to indicate that the courts have made use of advanced technology in appropriate cases. But, these decisions have no application to the facts of the present case. This is a case in which personal service of summons on the 1^st respondent or on an adult member of her family was not attempted at least once. Section 27 of the Code provides that, where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed. Therefore, service of summons in the manner prescribed by law is necessary to declare it as due service on a defendant.

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In Auto Cars v. Trimurti Cargo Movers : AIR 2018 SC 1165, the Supreme Court has stated that the

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object behind sending the summons is essentially threefold - First, it is to apprise the defendant about the filing of a case by the plaintiff against him; Second, to serve the defendant with the copy of the plaint filed against him; and Third, to inform the defendant about actual day, date, year, time and the particular court so that he is able to appear in the court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer. If the aforesaid objects are to be achieved, summons shall be served on the defendant in the prescribed manner. It is a well accepted principle of law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.

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The conspectus of the discussion made above is the following: Service of summons contemplated under Order V, Rule 15 of the Code on an adult member of the family of the defendant is personal service of summons on

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him/her and not service by registered post. Service of the summons by registered post, on an adult member of the family of the defendant, cannot be treated or declared as proper and valid service on the defendant.

¶153

On the basis of the aforesaid conclusions made by us, we find that service of summons, which was sent by registered post, effected on the mother of the 1^st respondent, cannot be treated or declared as proper and valid service. It follows that there is no illegality or impropriety in the order passed by the court below dismissing the application I.A.No.2190 of 2017.

¶154

Consequently, we dismiss the Original Petition.

¶155

(sd/-)

¶156

C.K.ABDUL REHIM, JUDGE

¶157

(sd/-)

¶158

R.NARAYANA PISHARADI, JUDGE

jsr/12/09/2018

O.P.(FC) No.206/2018

APPENDIX

PETITIONER'S EXHIBITS:

¶164

EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 07.04.2015 IN O.P.NO. 232/2015 ON THE FILES OF FAMILY COURT, THALASSERY, KANNUR DISTRICT FILED BY THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE A/D CARD DATED 11.05.15 SIGNED BY THE 1ST RESPONDENT'S MOTHER IN O.P.NO. 232/2015 ON THE FILES OF FAMILY COURT THALASSERY, KANNUR DISTRICT. EXHIBIT P3 CERTIFIED COPY OF THE A/D CARD DATED 08.06.2015 SEND ALONG WITH THE NOTICE IN O.P.NO 232/2015 ON THE FILES OF FAMILY COURT THALASSERY, KANNUR DISTRICT. EXHIBIT P4 TRUE COPY OF THE PROCEEDING SHEET IN OP NO. 232/2015 FROM 06.06.2015 TO 02.06.2016 ON THE FILES OF FAMILY COURT, THALASSERY, KANNUR DISTRICT. EXHIBIT P5 TRUE COPY OF THE APPLICATION IN I.A.NO. 2190/2017 DATED 16.12.2017 IN O.P.NO. 232/2015 ON THE FILES OF FAMILY COURT THALASSERY, KANNUR DISTRICT. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 21.12.2017 IN I.A.NO. 2190/2017 IN O.P.NO. 232/2015 ON THE FILES OF FAMILY COURT THALASSERY, KANNUR DISTRICT. RESPONDENTS' EXHIBITS : NIL TRUE COPY

¶165

PS TO JUDGE

Prakash Kunhipaily Paul v. Anila Mol Augustine

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Prakash Kunhipaily Paul v. Anila Mol Augustine

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