Allahabad High Court
The Registrar General, High Court ... vs Rakesh Kumar Shukla And 3 Others on 26 March, 2019
Bench: Pankaj Mithal, Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 269 of 2019
Appellant :- The Registrar General, High Court Of Judicature At Allahabad
Respondent :- Rakesh Kumar Shukla And 3 Others
Counsel for Appellant :- Samir Sharma
Counsel for Respondent :- Pushpendra Kumar Yadav
Hon'ble Pankaj Mithal,J.
Hon'ble Saumitra Dayal Singh,J.
1. The appeal is reported to be beyond time by 58 days. The delay in filing the appeal is sufficiently explained.
2. Accordingly, the delay is condoned.
3. The delay condonation application no.1 of 2019 is allowed.
4. Heard Sri Samir Sharma, learned counsel for the appellant.
5. The appellant is the Registrar General, High Court of Judicature At Allahabad. He is aggrieved by the direction contained in the order dated 10.12.2018 passed by the learned Single Judge while dismissing the matter under Article 227 of the Constitution of India.
6. The directions are for circulating the order of the Court to all District Judges with a direction to issue necessary instructions to Judicial Officers dealing with the matter of substituted service.
7. The appellant has applied for leave to appeal for the reason that issuance of any such direction as contained in the impugned order would ultimately interfere with the judicial working of the Judicial Officers.
8. Since directions have been issued to the Registrar General for circulating the order of the Court with necessary directions to the District Judges to issue instructions to Judicial Officers in passing judicial orders would tantamount to interference with the judicial working of the officers, the C.M. Application seeking Leave to Appeal No. 3 of 2019, is allowed.
9. The offending directions in the aforesaid order are reproduced hereinbelow and are highlighted in bold:
"The matter, therefore, shall be placed before the Registrar General, High Court, Allahabad, who shall circulate this order to the District Judges of all the Districts, who shall issue necessary instructions to the Judicial Officers not to allow application seeking service through the mode of publication in a routine manner, without recording reason of its satisfaction that the defendant(s) is(are) avoiding service or it is not possible to serve the summons by ordinary way for any other reason."
10. The provision for substituted service i.e. Order 5 Rule 20 of the Code of Civil Procedure reads as under:-
"20. Substituted service:-(1) Where the Court is satisfied that there is reason to believe 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 way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house(if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
22[(1A) Where the Court acting under sub-rule(1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.]
(2) Effect of substituted service-Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) Where service substituted, time for appearance to be fixed -Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require."
11. The aforesaid Rule in very specific terms lays down the modalities in which substituted service has to be resorted to by the court below.
12. Thus, the directions of the nature as contained in the order were neither necessary nor required for the disposal of the matter which was before the court concerned.
13. In view of the above clear provisions, there appears to be no necessity on part of the High Court or the District Judge to issue any directions on the judicial/administrative side to the subordinate judicial officers with regard to the manner in which the matters pertaining to substituted services are to be dealt with.
14. Accordingly, we are of the view that the highlighted offending portion as contained in the order dated 10.12.2018 be deleted. Accordingly, we partly allow the appeal and expunge the aforesaid highlighted portion of the order dated 10.12.2018.
Order Date :- 26.3.2019/S.Chaurasia
