Order V CPC | 'Substituted Service Is An Exception, Not A Matter Of Right': Allahabad High Court

"Substituted service is an exception to the normal mode of service and it can only be ordered by the Court if, it is of the belief, on the basis of material on record, that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary manner," observed the Allahabad High Court while setting aside a judgment passed by the first appellate court that had reversed a trial court decree in an ex-parte proceeding. The Bench emphasized that judicial satisfaction regarding the necessity of substituted service must be recorded and based on concrete evidence of failed service through ordinary modes, rather than being granted as a routine procedural concession to the plaintiff.

The core legal principle reinforced by this judgment is that the provisions of Order V Rule 20 of the CPC cannot be invoked as a primary or automatic method of service. The Court held that substituted service is a last resort and requires the judicial mind to be satisfied through material on record that the defendant is deliberately evading service or that ordinary service is physically impossible. A mechanical or cryptic order for newspaper publication, passed without verified reports of prior attempts via registered post or process server and subsequent refusal by the defendant, constitutes a breach of the mandatory procedures under Order V Rules 12, 15, and 17 of the CPC, rendering any resulting ex-parte decree legally unsustainable and liable to be set aside under Order 41 Rule 21 of the CPC.

The matter arose from a property dispute where the plaintiff-respondents' suit for permanent injunction and possession had been dismissed on merits by the Trial Court. Upon filing a Civil Appeal, the first appellate court permitted substituted service via newspaper publication almost immediately after the appellants moved simultaneous applications for registered post and publication. Claiming that the defendant was aware of the appeal and was attempting to sell the property, the plaintiffs persuaded the appellate court to proceed ex-parte. The appellate court subsequently reversed the trial court's findings and decreed the suit in favor of the plaintiffs. The defendant-appellant thereafter moved an application under Order 41 Rule 21 read with Section 151 CPC to recall the ex-parte judgment, which was rejected by the Additional District Judge, Ghaziabad, leading to the instant appeal before the High Court.

Justice Sandeep Jain, upon perusing the record, noted with concern that there was no documentary evidence such as postal receipts, acknowledgment dues, or process server reports to establish that any genuine attempt at ordinary service was ever made. The Court found that the appellate court had acted on a "figment of imagination" by concluding that previous notices remained unserved without any undelivered envelopes or reports present on the file. Integrating established jurisprudence, the Court cited the Supreme Court’s ruling in Smt. Yallawwa vs. Smt. Shantavva, observing that "the trial court could not have almost automatically granted the application for substituted service without taking steps for serving the respondent by ordinary procedure."

The Bench further highlighted a blatant non-compliance with Order V Rule 17 CPC, which mandates that if a defendant cannot be found, the serving officer must affix a copy of the summons on the outer door of the residence in the presence of witnesses. In the absence of such a report, the Court held that the appellate court lacked the requisite "reason to believe" that the defendant was keeping out of the way. Furthermore, the High Court pointed out that since the defendant resided in Delhi—outside the local jurisdiction of the Ghaziabad court—the appellate court should have invoked Order V Rule 21 CPC to effect service through the competent Delhi court.

Concluding that the defendant-appellant had shown sufficient cause for non-appearance due to the insufficiency of service, the High Court allowed the appeal and set aside the ex-parte judgment dated July 17, 2019. The Court restored the Civil Appeal to its original number and directed the first appellate court to decide the matter afresh on merits within four months, while ordering the parties to maintain status quo regarding the disputed property in the interim.

Date: 11.02.2026