Disposed¶42

Issac Joseph, v. Jicy Joseph

Kerala HC1 Apr 2025OP(C)/1941/2021

Case brief

AI extract

What is this about?

Service of summons/notice on absent defendant — Order 5 Rule 17 CPC — service on agent in charge of property — e-mail service refused (Ext.P4 order dated 27.07.2021 in I.A. 9799/2018 in O.S. 1102/2018, Munsiff Court Ernakulam) — defendant settled in U.S.A., address not furnished — power of attorney dated 23.12.2021 (Smt. Valsamma Ghosh) — defendant represented through power of attorney holder — service on person in charge treated as proper service — Kerala HC Ernakulam, K. Babu J., OP(C) 1941/2021, neutral citation 2025:KER:27661.

What did the court decide?

Permission granted to the petitioner/plaintiff to serve notice on the defendant through Smt. Valsamma Ghosh (person in charge of the defendant's property), with service on her to be treated as proper service on the defendant; Original Petition disposed of accordingly. ¶42

Issac Joseph, Vs Jicy Joseph — Kerala HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the petitioner/plaintiff may be permitted to serve notice on the defendant, who is settled abroad and whose present address has not been furnished, through Smt. Valsamma Ghosh, the agent/person in charge of the defendant's property, as per Order 5 Rule 17 CPC.

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Court's answer

Under Order 5 Rule 17 CPC, where a suit is filed to obtain relief with respect to immovable properties and service cannot be made on the defendant in person and the defendant has no agent empowered to accept the service, notice may be served on any agent of the defendant in charge of the property.

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Ratio / Principle

Since the power of attorney produced by the respondent shows Smt. Valsamma Ghosh to be the person in charge of the defendant's property, the petitioner/plaintiff is permitted to serve notice on the defendant through her, and service of notice on her will be treated as proper service on the defendant.

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Detailed headnote1 paragraphs

Kerala High Court (Ernakulam), K. Babu, J. — OP(C) No. 1941 of 2021, decided 01.04.2025 (2025:KER:27661). Challenge to Ext.P4 order dated 27.07.2021 in I.A.No.9799/2018 in O.S.No.1102/2018 of the Principal Munsiff's Court, Ernakulam refusing the plaintiff's request to serve notice on the defendant through e-mail. Defendant settled in the U.S.A.; present address not furnished; defendant executed a power of attorney (23.12.2021) authorising Smt. Valsamma Ghosh to manage her immovable properties and prosecute litigations. Held: although the defendant admittedly had no agent empowered to accept service, under Order 5 Rule 17 CPC notice may be served on any agent of the defendant in charge of the property; the power of attorney identified Smt. Valsamma Ghosh as the person in charge. Plaintiff permitted to serve notice on the defendant through Smt. Valsamma Ghosh, such service to be treated as proper service on the defendant. Original Petition disposed of accordingly.

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2025:KER:27661

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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 K. BABU

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TUESDAY, THE 1ST DAY OF APRIL 2025 / 11TH CHAITHRA, 1947

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OP(C) NO. 1941 OF 2021

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AGAINST THE ORDER DATED 27.07.2021 IN OS NO.1102 OF

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2018 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM

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PETITIONER/PETITIONER/PLAINTIFF:

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ISSAC JOSEPH,

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AGED 57 YEARS, S/O. LATE P.P. JOSEPH, PALATHINKAL
HOUSE, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, SOUTH
PARUR P.O., ERNAKULAM 682 320.

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BY ADVS.
JOLLY JOHN
LIZA MEGHAN CYRIAC

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RESPONDENT/RESPONDENT/DEFENDANT:

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JICY JOSEPH,

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AGED 49 YEARS, D/O. LATE JOSEPH, LAST RESIDED AT
PALATHINKAL HOUSE, MANAKUNNAM VILLAGE, KANAYANNUR
TALUK, SOUTH PARUR P.O., ERNAKULAM 682 320 HAVING
EMAIL ID AT [email protected].

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BY ADVS.
K.M.SATHYANATHA MENON
KAVERY S THAMPI

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THIS OP (CIVIL) HAVING COME UP FOR FINAL HEARING ON
01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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OP(C) NO. 1941 OF 2021

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2025:KER:27661

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K.BABU, J.

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O.P (C) No. 1941 of 2021

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Dated this the 1^st day of April, 2025

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J UDGMENT

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The challenge in this Original Petition is to Ext.P4 order dated 27.07.2021 in I.A.No.9799/2018 in O.S.No.1102/2018 on the file of the Principal Munsiff’s Court, Ernakulam whereby the request of the plaintiff in a suit relating to immovable property to serve notice to the defendant through e-mail was refused.

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I have heard the learned counsel for the petitioner/plaintiff and the learned counsel for the respondent/defendant.

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It is submitted that the respondent/defendant is now settled in the U.S.A. and she has appeared through her power of attorney holder.

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The learned counsel for the petitioner is

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seeking permission to serve notice to the agent-in-charge of the property as per Order 5 Rule 17 CPC.

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The learned counsel for the

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OP(C) NO. 1941 OF 2021

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2025:KER:27661

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respondent/defendant submitted that the defendant is duly represented by her power of attorney holder.

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A copy of the power of attorney executed by

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the defendant on 23.12.2021, has been produced by the respondent. It is discernible from the power of attorney that the defendant has authorised Smt. Valsamma Ghosh, Deep Villa, Pazhampilly stop, Kongorpilly P.O., Erankulam District, Pin- 683525, as her power of attorney to manage her immovable properties and to prosecute litigations in respect of the same for and on behalf of her.

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It is submitted that the present address of the defendant has not been furnished before the Court. As per Order 5 Rule 17 CPC, when a suit is filed to obtain relief with respect to immovable properties and its service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property. Admittedly, the defendant has no agent empowered to accept the service. But, as per the power of attorney produced by the respondent herself, she has authorized the above referred Smt. Valsamma Ghosh as the person in charge of her property.

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OP(C) NO. 1941 OF 2021

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2025:KER:27661

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Therefore, the petitioner/plaintiff is permitted to serve notice to the defendant through the above referred Smt. Valsamma Ghosh. Service of notice on her will be treated as proper service on the defendant.

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The Original Petition is disposed of as above.

Sd/-

K.BABU, JUDGE