The Leap to Substituted Service and Publication
When affixture fails, Rule 20 of Order V allows substituted service by publication. The court may direct that a copy of the summons be published in a newspaper circulating in the area where the defendant is believed to reside. This method is reserved for cases where the defendant is deliberately evading service, or where their whereabouts are genuinely unknown. The order for publication must be obtained from the court; it is not a step that the plaintiff's lawyer can take unilaterally. Once published, the newspaper cutting and the court order together form the proof of service.
Service through the court of another jurisdiction is another option when the defendant resides outside the local jurisdiction of the court. The summons is transmitted to the appropriate court in that jurisdiction, which then effects service and returns the affidavit of service. This method ensures that service is carried out according to the law of the place where the defendant actually lives.
The Modern Turn: Courier, Fax, Email, and Electronic Modes
Rule 9 of Order V has evolved to accommodate modern methods of communication. Service by courier, fax, and email is now expressly recognised. But recognition by the rules is not the same as automatic validity. Each method carries strict evidentiary requirements.
Service by courier requires a delivery report showing the date, time, and recipient's signature or acknowledgment. Service by fax requires a transmission report confirming successful delivery to the correct fax number. Service by email requires proof of delivery—not merely that the email was sent, but that it reached the recipient's inbox. Many courts now accept email service, but the affidavit of service must clearly state the email address used, the time and date of sending, and any delivery confirmation or read receipt obtained.
WhatsApp service has emerged as a practical frontier. Several High Courts have issued circulars expressly permitting electronic service of summons through WhatsApp and similar messaging platforms, particularly in cheque dishonour cases under Section 138 of the Negotiable Instruments Act. The logic is compelling: if a defendant has deliberately provided a mobile number and actively uses WhatsApp, service through that medium is both reasonable and effective. However, the record must be meticulous. The affidavit should identify the WhatsApp number, show that it belongs to the defendant (or their authorised agent), record the exact time and date of sending, and preserve the delivery report—the double tick indicating that the message was delivered and read. Screenshots of the chat, the profile name and picture, and the delivery status must be attached to the affidavit. Courts have held that if the message is read (indicated by the double tick changing to blue), there is strong evidence that the defendant received notice.
Cheque Dishonour Cases: The Electronic Service Exception
Cheque dishonour litigation under Section 138 of the Negotiable Instruments Act has become a testing ground for electronic service. Many High Courts have recognised that in these cases, where the defendant is often a commercial party with a known mobile number and email address, requiring traditional personal service is both impractical and contrary to the purpose of the statute. Courts have therefore expressly permitted service of summons by email, WhatsApp, and SMS to the mobile number or email address provided by the defendant. The affidavit of service must still be rigorous—it must show the exact mode used, the address or number targeted, the time and date of sending, and any proof of delivery or receipt. But the legal barrier to electronic service in these cases has effectively fallen.
The Consequences of Improper Service: Ex Parte Decrees and Setting Them Aside
If service is defective or absent, and the defendant does not appear, the court may pass an ex parte decree. This decree is not final; it can be challenged under Order IX Rule 13 of the CPC. An application for setting aside an ex parte decree must be filed within a reasonable time, and the applicant must show: (1) that they did not receive notice of the suit, or that service was improper; (2) that they have a prima facie defence on the merits; and (3) that they are acting promptly, not sleeping on their rights.
The proviso to Order IX Rule 13 introduces a critical limitation: if the court is satisfied that the defendant had notice of the suit, even if service was technically defective, relief may be refused. This proviso has spawned considerable litigation. Courts have held that notice can be established by circumstantial evidence—for example, if the defendant admits knowledge of the suit, or if they took steps that show they were aware of the proceedings. The burden of proving notice lies with the plaintiff, but once a prima facie case for notice is made, the defendant must actively rebut it.
Building an Unimpeachable Service Record: The Chamber Checklist
To avoid the trap of improper service, adopt this checklist:
Before Service: Verify the correct address. Confirm any email address or mobile number with the defendant or their counsel. If serving electronically, ensure the defendant has agreed to this mode, or that a court order or statutory authority permits it.
During Service: Record the exact date, time, and method. Identify the person served by name and relationship (if not the defendant directly). Note any circumstances—refusal, absence, obstacles. Obtain a signature or acknowledgment whenever possible.
After Service: Prepare an affidavit of service that is detailed and specific. Do not use generic language. Attach all supporting documents: delivery reports, courier receipts, email transmission confirmations, WhatsApp screenshots with delivery and read status, newspaper cuttings, or court orders. For electronic service, preserve the complete chain of evidence.
Preservation: Keep all original documents and proofs. Digital records should be backed up. Be prepared to produce the process holder in court if service is challenged.
Conclusion: Service as the Foundation of Fair Process
Service of summons is not a bureaucratic formality. It is the foundation of fair process. A defendant who genuinely does not receive notice has been denied the right to be heard. The law therefore demands rigour in service, and courts scrutinise the affidavit of service closely. By understanding the full menu of service methods under Order V, by choosing the appropriate method for each case, and by building a meticulous record of what was done and when, you protect both the fairness of the process and the validity of any decree that follows. In an era where electronic communication is ubiquitous, courts are increasingly willing to recognise modern modes of service—but only when the record is clear, complete, and credible. That standard is not a burden; it is a safeguard.
