OV R17 CPC | No Service Of Summons If Process Server Does Not Affix Notice On Door Or Conspicuous Part Of Defendant's Address: MP High Court

The Madhya Pradesh High Court, Indore Bench recently held that the process server not affixing notice as per the provision under Order V Rule 17 CPC would be deemed to be an illegality and that it cannot be said to be an irregularity in the context of the second proviso to Order IX Rule 13 CPC. The bench comprising Justice Subodh Abhyankar further observed that in absence of non-compliance of affixing the notice, the service of summons on the Defendant ought to be treated as non-service- On due consideration of submissions and on perusal of the record, testing the facts of the case on hand on the anvil of the aforesaid dictum of the Supreme Court, this Court finds that so far as the service of notice on the defendant Nos.3 and 4 is concerned, admittedly, the process server has tried to serve them through Ex.D/7 and D/9, which clearly reveal that process server has not tried to affix the notice as provided under Order 5 Rule 17 of CPC, which cannot be said to be an irregularity, and in fact, it should be deemed to be an illegality, and as has been held by the Supreme Court that in the absence of affixture of notice, the service of summons on the defendant should be treated as non-service, this Court is of the opinion that learned Judge of the District Appellate Court has committed no illegality or jurisdictional error in reversing the order passed by the Civil Judge and remanding the matter back, and thus, no interference is called for. Thereafter, the Respondents moved an application under Order IX Rule 13 CPC for setting aside the decree passed ex-parte but the same was rejected by the trial court. Placing reliance on the decision of the Supreme Court in Sushil Kumar Sabharwal v. Gurpreet Singh, it noted that pursuant to the provision under Order V Rule 17 CPC, it was mandatory for the process server to affix the notice.