Court Recognizes Affixture and Postal Endorsements as Valid Modes of Service Despite Respondent's Evasive Conduct
In a significant ruling, the Division Bench of the Orissa High Court, comprising Justices Manash Ranjan Pathak and Sibo Sankar Mishra, affirmed the validity of service of summons in a matrimonial appeal, despite the respondent's deliberate avoidance. The case, Sunita Nayak v. Anup Kumar Tota, revolved around the appellant-wife challenging the dissolution of her marriage by the Family Court, Berhampur.
The court addressed the complexities involved in the service of summons, highlighting the statutory provisions under the Civil Procedure Code, 1908, and the Evidence Act, 1872. The appellant had issued notice to the respondent through Speed Post and Special Messenger, which was refused by the respondent's family members. Consequently, the notice was affixed on the respondent's residence in the presence of witnesses, a procedure sanctioned under Order V Rule 17 of the CPC.
The judgment elaborated on the presumption of service under Section 27 of the General Clauses Act, 1897, and Section 114 illustration (f) of the Evidence Act, 1872. These provisions allow the court to presume that a duly posted letter is delivered in the ordinary course, shifting the burden to the addressee to rebut this presumption.
Justice Pathak, writing for the bench, noted, "Delay and prolongation of the judicial process are largely attributable to the hindrances in the service of summons. The appellant has taken all reasonable steps, demonstrating due diligence and bona fides in effecting service."
The court referenced previous Supreme Court rulings, including Ajeet Seeds Limited v. K. Gopala Krishnaiah and Madan & Co. v. Wazir Jaivir Chand, to reinforce that refusal to accept notice or deliberate avoidance amounts to valid service under law. The judgment emphasized a practical interpretation of service requirements to prevent misuse by addressees.
Despite the statutory presumptions, the respondent failed to provide any material to contest the service, reinforcing the court's stance on valid service. The case is scheduled for hearing on May 4, 2026, allowing the appellant to proceed with her appeal.
Bottom line:-
Service of summons/notices - Presumption of due service arises under Section 27 of General Clauses Act and Section 114 illustration (f) of Evidence Act when notice is properly addressed, prepaid, and sent by registered post to the correct address - Refusal to accept notice or deliberate avoidance amounts to valid service under law.
Statutory provision(s): Civil Procedure Code, 1908 Order V Rules 9(5), 17, 19; Evidence Act, 1872 Section 114 illustration (f); General Clauses Act, 1897 Section 27
Sunita Nayak v. Anup Kumar Tota, (Orissa)(DB) : Law Finder Doc id # 2938684
