IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT

CASE NO.Fao. No. 248 of 2016

Mollykutty @ Mollykutty Vallant

vs

Nicy Jacob

ADVOCATES
Smt. M.A. Sulfia, Sri. Abdul Jaleel. A Caveator
By Advs. Sri. Jacob P. Alex
Sri. Joseph P. Alex
Sri. K.J. Kuriachan
By Advs. Sri. Abdul Jaleel A.

JUDGES
K. Harilal, Annie John, JJ.

     This appeal has been filed challenging the common order, whereby the Principal Sub court, Kottayam dismissed IA Nos. 641 and 642/2015 in OS 218/2009. O.S. No. 218/2009 was a suit for partition filed by respondents 1 to 5 herein against the appellant and others. IA 641/2015 is an application filed under Order 9 Rule 13 of the CPC to set aside the ex-parte decree and judgment passed against the appellant and IA 642/2015 was filed to condone the delay of 51 days in filing the application to set aside the ex-parte decree and judgment.

2. The appellant is an Indian citizen, permanently residing and working in USA. She is the first defendant in O.S. No. 218/2009 of the Court of Principal Sub Judge, Kottayam. The said suit was filed by the respondents 1 to 5, as the plaintiffs, seeking a decree for partition of the plaint schedule property. The appellant was set ex parte and an ex parte decree granting partition of the plaint schedule property was passed. According to the appellant, the plaint schedule property is not partible, as she has absolute title and possession over the plaint schedule property in exclusion of the plaintiffs and other defendants. But she has not received the summons in the said suit, as the same was not duly served to her in accordance with the Rules. The procedure adopted by the courts below, to declare that the summons had been duly served on the appellant, is illegal and perverse. The ex parte decree was passed on 26.09.2011; but she came to know about passing of the ex parte decree against her only on 19.01.2015, when the ameen went to the plaint schedule property in execution of the final decree passed in the suit. Since she was residing in USA, there occurred some delay in obtaining a power of attorney of the appellant. There is a delay of 51 days in filing the application to set aside the ex parte decree. There is no negligence or laches in causing the said delay on her part. Since the summons was not duly served to her in accordance with the Rules, the ex parte decree is liable to be set aside after condoning the delay. Hence, she filed I.A. No. 641/2015 to set aside the ex parte decree and I.A. No. 642/2015 to condone the delay of 51 days in filing I.A. No. 641/2015. Both the applications were filed by the power of attorney, for and on behalf of the appellant.

3. The respondents resisted the prayer for setting aside the ex parte decree contending that the appellant had knowledge about the ex parte decree passed against her before 19.01.2015, as she had come to India several times, reached her native place and stayed along with her close relatives. There is unexplained inordinate delay in filing the application to set aside the ex-parte decree. So also, the summons was properly addressed and duly sent to the appellant and the same is evident from the records. Therefore, the declaration, that the summons has been duly served to the appellant, is correct as well as justifiable. They prayed for dismissing both the applications.

4. Heard Shri. Jacob Alex, the learned counsel appearing for the appellant and Shri. Abdul Jaleel, the learned counsel for the respondent.

5. The learned counsel appearing for the appellant advanced arguments exhaustively, attacking the declaration of the deemed service of summons, made by the court below. According to the learned counsel, the summons was not properly addressed or duly sent, in adherence to the comprehensive guidelines, for the transmission of notices/summons/judicial documents, framed and issued by the Ministry of Law and Justice, Union of India, pursuant to the Hague Convention, 1965, on the service in foreign countries, on Judicial and extra-judicial matters, on civil or commercial matters and insisted by the High Court of Kerala, through various OMs. The learned counsel drew our attention to the various Articles in the Resolution passed by the Hague Convention, 1965 and various Government Orders and OMs issued by the Ministry of Law and Justice, Union of India, to the High Court of Kerala and various OMs issued by the High Court of Kerala to the Subordinate Courts. Relying on the aforesaid documents, the learned counsel strenuously contended that unless the summons was sent in adherence to the procedure for transmission of Judicial document insisted by the High Court of Kerala, more particularly, they are served through the Ministry of Law and Justice, in the “requisite form”, it cannot be said that the summons was properly addressed and duly sent. Similarly, no declaration could have been made, unless the summons was duly sent as prescribed in the guidelines, which came into force in India, pursuant to the Hague Convention, 1965.

6. Per contra, the learned counsel appearing for the respondents, advanced arguments to justify the declaration of deemed service made by the court below, when the acknowledgement was not returned within one month. According to the learned counsel, the declaration is justifiable, in view of Order V Rule 9 of the Code of Civil Procedure. It is also contended that even if notice was duly served, the appellant was well aware of the ex-parte decree passed against her before 19.01.2015.

7. Thus, the legality and correctness of the mode of service and declaration of due service of summons are challenged in this appeal. The questions that emerge for consideration in this appeal are given below:

1. What is the proper procedure for transmission of summons/notice to a person residing in a foreign country, which is a party to the Hague Convention, 1965.

2. Can summons/notice be declared duly served, where the same was sent directly to the person residing in a foreign country, which is a party to the Hague Convention, 1965.

3. Can a declaration of deemed service of notice/summons be made as provided under the proviso to sub-rule 5 of Rule 9 of Order V CPC, where the summons/notice has been sent to the defendant, who is residing in a foreign country, which is a party to the Hague Convention, and acknowledgement has not been received back, within one month.

8. Let us examine the reasonings, whereby the court below made a declaration that summons had been duly served to the appellant. Admittedly, the appellant has been residing in USA at the time of institution of the suit and even now. It is well discernible from the impugned judgment that the summons was issued directly to the appellant by registered post with A/D in the USA address of the appellant as shown in the plaint. But that summons was not returned unclaimed. Therefore, it was considered as deemed service of summons and consequently the first defendant was set ex parte on 15.06.2010. The order dated 15.06.2010 reads as follows:

“Summons to D1 by registered post not returned unclaimed. Hence, deemed service.

D1 is set ex parte. For hearing I.A. to 06.07.2010”.

9. Further the court below observed that according to proviso to Sub-Rule 5 of Rule 9 of Order 5 of CPC, where the summons was properly addressed, prepaid and duly sent by registered post with acknowledgement due, the declaration referred to in this sub rule shall be made, notwithstanding the fact that the acknowledgement having been lost or mislaid or for any other reason has not been received by the Court within thirty days from the date of issue of summons. Thus proviso to Sub-rule 5 of Rule 9 of Order 5 CPC empowers the court to make such a declaration, as stated above.

Question Nos. 1 and 2

10. In view of the reasonings stated above, the point to be considered is whether the summons was duly sent? On an analysis of the proviso to Sub-rule 5 of Rule 9 of Order 5 CPC, we find that the proviso empowers the court to make such a declaration, only if summons was properly addressed, prepaid and duly sent by registered post with A/D. If that be so, at first, let us examine whether the summons was properly addressed, prepaid and duly sent by registered post with A/D. Admittedly, the summons has been sent directly to the appellant in her foreign address; Can the court below be justified in sending the summons directly to the defendant in her foreign address?

11. On a survey of the various provisions under Order 5 of the CPC, we find that Rules 25, 26 and 26A deal with service where defendant resides in foreign country, service in foreign territory through political agent or court and service through offi cers of foreign countries respectively.

12. But, we have noticed that in supplementary to the said provisions for the service of summons/notices to the persons residing in foreign country, in compliance with the guidelines framed by the Ministry of Law and Justice and communicated to this Court, pursuant to the Hague Convention on the services in foreign country, of judicial and extra-judicial documents in civil or commercial matters on 15.11.1965, the High Court of Kerala had issued various OM’s to the subordinate courts directing them to adhere the guidelines formulated by the Hague Convention, 1965 in serving summons/notices to the persons residing in foreign country, which is a party to the Hague Convention.

13. It is to be borne in mind that India acceded to the Hague Convention on 23.11.2006 and the convention was entered into in force in India on 1.8.2007. Thereafter, the Ministry of Law and Justice is the nodal ministry for the service of summons/notices and other judicial process in civil and commercial matters served on persons residing in foreign country, which is a party to the Hague Convention. Similarly Ministry of Home Affairs, New Delhi is the Nodal Ministry for the service of summons/notices and other judicial process in criminal matters [OM No. D1B21216/2009 dt:26.07.2010 of the High Court of Kerala]. The Ministry of Law and Justice issued instructions to the High Court insisting strict adherence to the guidelines formulated by the Ministry of Law and Justice, pursuant to the Hague Convention, 1965. The High Court of Kerala had insisted strict adherence to the said guidelines through O.M. Nos. D1(B)-17109/2005 dtd:08.04.2005, D1(B)-52483/2006 dtd:07.08.2006, D1(B)-26378/2006 dtd:05.06.2006, D1(B)-180/2007 dtd:11.01.2007, D1(B)-75265/2008 dtd:26.12.2008, D1B-21216/2009 dtd:12.05.2009, D1B-33789/2010 dtd:23.06.2010, D1B-21216/2009 dtd:01.07.2010, D1B-21216/2009 dtd:26.07.2010, & D3-92033/2014 dtd:12.03.2015 sent to the subordinate courts. The High Court of Kerala directed the subordinate courts to follow the said guidelines in serving summons/notices to the persons residing in foreign country, which is a party to the Hague convention. OM No. D1B33789/2010 dated 23.06.2010 issued by the High Court of Kerala to the Subordinate Courts reads thus:

“In the circumstances, as sought by the Government of India, all Subordinate Courts in the State are informed that it is an obligation of the Judicial Courts in the Country to follow the mandates of the Convention, as India has become a signatory to the Convention, the stipulations of which have come into force for the Country w.e.f.29th August, 2007.”

14. More importantly, for serving notices/summons on persons residing in USA, there is a specific guideline as per the mutual legal agreement of treaty between India and USA and the High Court of Kerala directed all the subordinate courts to follow the said procedure for serving summons/notices to the persons residing in USA by OM dated 01.07.2010 issued by the High Court of Kerala. In the case of USA, summons/notices for service in USA are to be sent directly by the courts to ‘process forwarding international,’ the central authority appointed by USA and they, in turn, serve them to the addressee concerned.

15. In view of the various OM’s referred to above, we find that summons/notices could be served to the persons residing in USA, in strict adherence to the procedure prescribed in the said OM. The summons/notices could not be sent directly to the persons residing in foreign country, after the adoption of the said method of transmission formulated, pursuant to the Hague Convention. Since the OM’s are various in number, we have directed the Registry of this court to formulate and submit a codified general Rules of procedure to be followed in sending notices/summons and other Judicial documents in civil and commercial matters to persons residing in foreign country, which is a party to the Hague Convention. In compliance with the said direction, the Registry formulated a general procedure and submitted before us for serving summons/notices and Judicial documents to persons residing in foreign country. The said general procedure reads thus:

General procedure to be followed for service of notice in civil and commercial matters, on persons residing abroad

i) The Ministry of Law and Justice is the nodal Ministry for the service of notices and other judicial processes in civil and commercial matters to be served on persons residing abroad. Therefore, requests for service of Notices and other Judicial processes in Civil and Commercial matters to be served on parties residing abroad are to be forwarded with a covering letter from the Court concerned to the Joint Secretary of Legal Affairs, Ministry of Law and Justice, Department of Legal Affairs, Shastri Bhawan, New Delhi.

ii) The request needs to be sent in the prescribed ‘Request Form’ under the Hague Convention of 1965 along with the ‘Warning’ and ‘Summary of the Documents to be served’, all in duplicate. (Copies of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965, the prescribed ‘Request Form’, ‘Warning’ and ‘Summary of the Documents to be served’ along with instructions for filling them up enclosed – details available at www.hcch.net)

iii) Notice/Summons in original (containing the seal of the court) and copy of the petition, in duplicate, have to be submitted, providing more than 4 months time, for effecting service in foreign countries.

iv) The complete name and full address of the party is to be furnished. (P.O. Box Number and Passport Number will not suffice as the address of the individual)

v) The complete address of the issuing authority to which the service report is to be returned has to be furnished.

vi) Translation of the documents in the official language of the country where the notice is proposed to be served, wherever necessary (viz. in the case of Non-English speaking Countries like China, Arabian Countries etc.) have to be furnished.

vii) Notice/summons for service in USA are to be sent directly by the Courts to Process Forwarding International, 633 Yesler Way, Seattle, WA 98104, USA along with the required fee etc. (details available at www.hcch.net), as the Central Authority, USA has authorized the said agency to receive summons/notices under the Hague Convention of 1965. Details regarding the same are available in link pertaining to USA in the ‘Central and other Authorities’ link in the ‘Service’ section in the home page of the website www.hcch.net.

viii) The Central Authorities in Canada and Australia charge a fee for the process of service under the Hague Convention of Service Abroad of Judicial and Extra-Judicial Matters, 1965. Fee may also be charged by other countries for the process of service as above. Details regarding the fees, if any, and the mode of payment are available in the link pertaining to the respective country in the ‘Central and other Authorities’ link in the ‘Service’ section in the home page of the website www.hcch.net.

ix) The Department of Legal Affairs processes the service of summons/notices in civil and commercial matters issued by an Indian Court for service on a person residing in a foreign country with which there is a reciprocal arrangement. The list of member State/non-member State and the details regarding the Central Authority & practical information relating to member States to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965 are available in the Service Section of the website “www.hcch.net”.

(x) In addition to the general procedure outlined above, different countries may have different requirements and specific procedures (which may be subject to updation over a period of time) which have to be complied with for service of summons/notices to persons residing in such countries and the same have to be ascertained from the link pertaining to the respective country in the ‘Central and other Authorities’ link in the ‘Service’ section in the home page of the website ‘www.hcch.net’.

16. Going by the said guidelines, we find that after the formation and adoption of the specific method of transmission, for service of notice/summons in civil and commercial matters, by India, pursuant to the Hague convention 1965, no notice/summons could be sent directly to the persons residing in a foreign country, which is a party to the Hague Convention. If summons or notice was sent directly to the person residing in a foreign country, which is a party to the Hague Convention, it cannot be said that the summons was properly addressed and duly sent. No declaration of deemed service also could be made, where the acknowledgement has not been received back.

17. According to the guidelines, the requisites for service of notice/summons and other judicial process in civil and commercial matters, to be served on parties residing abroad, are to be forwarded with a covering letter from the court concerned to the Joint Secretary of Legal Affairs, Ministry of Law and Justice, Department of Law and Justice, Sasthri Bhavan, New Delhi, with required fee, if any. Similarly in matters, summons/notices/Judicial process are to be forwarded to the Under Secretary (Legal) I & II Division, Ministry of Home Affairs. That apart in the case of USA, summons/notice, for service in USA are to be sent directly by the courts to the Process Forwarding International, 633 Yesler way, Seattle, WA 98104, USA along with the required fee, (details available at www.hcch.net), the Central Authority, as they, in turn, serve them to the addressee criminal concerned.

18. But we notice that the courts below have not scrupulously followed the said method of transmission in the service of summons/notice to the person residing in a foreign country which is a party to the Hague Convention and laches are recurrent. Hence, we remind all the courts below that no notice/summons shall be sent directly to the person residing in a foreign country which is a party to the Hague Convention 1965. All the courts below shall send notice/summons to the person residing in foreign country which is a party to the Hague Convention in strict adherence to the guidelines stated above and easily available in the website referred above. In the case of USA, the courts below shall follow the guideline formulated for the USA alone under the agreement of treaty with USA.

19. But we find that in the instant case, the court below has not followed the specific guideline insisted by this Court by various OMs to the subordinate courts, evidenced by OMs referred above. In the instant case, summons has been sent directly to the appellant in her foreign address and acknowledgement has not returned. Hence, the court below has declared that the summons has been duly served.

20. On an examination of the records, we find that the summons was not sent in adherence to the aforesaid rules of procedure and it was sent directly to the appellant by registered post. Therefore, the court below could not have made a declaration that summons was duly served to the appellant. So, it can be held that the summons was not properly addressed and duly sent to the appellant and thereby she could not appear before the court when the case was called on for hearing. In the instant case, since the summons was not duly sent, there was no circumstance to declare deemed service also.

Question No. 3

21. In the case of declaration of deemed service, where certificate of due service has not been received, Article 15 of the Hague Convention stipulated certain conditions for the declaration of deemed service. Article 15 of the Hague Convention reads thus:

Article 15

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that:—

a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention, and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled:—

a) the document was transmitted by one of the methods provided for in this Convention.

b) A period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,

c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State Addressed. Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

22. We are of the opinion that deemed service of summons/notice, where the acknowledgement has not been received back, as contemplated under Sub-rule 5 of Rule 9 of Order 5 CPC, has become inoperative and unenforceable against the defendant residing in a foreign country, which is a party to the Hague Convention by the operation of Article 15 of the Hague Convention. Since we have enforced guidelines issued by the Government of India, pursuant to the Hague Convention, no declaration of deemed service could be made where the certificate evidencing due service has not been received back, unless the court is satisfied with the aforesaid conditions stipulated under Article 15 of the Hague Convention. In the above view also, the deemed service of summons, is legally unsustainable.

23. To sum up, whenever service of notice/summons to the defendant residing in a foreign country comes for consideration, it is incumbent upon the courts below to ascertain whether the country is a party to the Hague Convention, by resorting to the website referred to abve and follow the method of service prescribed in the aforesaid guideline. Declaration of deemed service, where the certificate of service has not been received back, can be made on satisfaction of the condition stipulated in Article 15 of the Hague Convention only.

24. According to the appellant, she came to know about the ex parte decree passed against her on 19.01.2015 only. There is no evidence to show that she had knowledge about the ex parte decree passed against her before 19.01.2015. Further, the appellant submits that there is a delay of 51 days in filing the petition to set aside the ex parte decree and the same was caused by the delay in execution of the power of attorney. We are of the opinion that the delay is not inordinate and it cannot be held that the said delay was caused by negligence or laches, in the absence of any evidence to the contrary. In the matter of condoning delay, liberal view is the general Rule. Since the reason for delay is reasonable, we set aside the order dismissing I.A. No. 642/2015 and the delay will stand condoned. Similarly, since the summons was not properly addressed or duly sent to the appellant, as prescribed by the rules of procedure in force, the order dismissing I.A. No. 641/2015 also would stand set aside and the same also would stand allowed. The impugned judgment and decree, both preliminary and final, passed in O.S. No. 218/2019 would stand set aside. In the result, this appeal is allowed. The parties shall appear before the trial court on 26.02.2019 and the said suit shall be disposed of afresh, on merits, within six months thereafter. The list indicating the date of trial shall be published four months in advance. Registry is directed to send the copy of this judgment to the Principal Sub Court, Kottayam, aforthwith.