Order 5 Rule 2
On an analytical examination of the entire case law cited at the bar and on pursuing Order 5 Rule 2, Civil Procedure Code, it can safely be held that attachment of the copy of the plaint or a concise statement thereof along with the summons is mandatory. No summons can be regarded to have been duly served unless it is accompanied by a copy of the plaint. ‘Due service’ means service of summons along with the plaint. It cannot be held that the word ‘due’ has been superfluously used by the Legislature. Compliance of the provisions of Order 5 Rule 2 Civil Procedure Code is a must and it cannot be held to be directory
Babu Ram Bhatnagar v. Satish Kumar Rawal, 1992(2) RRR 35
Order 5 Rule 17
Civil Procedure Code , 1908 (V of 1908), Order 5 Rule 9, 17 - Substituted service through affixation - There is a report of service dated 14.03.2004, duly signed by DS Chowkidar as a witness because at the first instance, the Court had sent the summons through Process Server for effecting service upon the defendant personally - Order 5 Rule 9 of the CPC regarding service by way of registered post is an option with the Court, but the Court can always serve the defendant through the Process Server who delivers the summon of the Court to the defendant in person - Initially, on 22.01.2004, the Court had recorded that the defendant could not be served as the summons were received back unserved - Again the defendant was ordered to be served on 17.03.2004 by filing of PF - Process Server has recorded in his report that defendant had seen him and concealed himself in his house, meaning thereby he refused to take the summons or evaded service - The said report is duly witnessed by DS Chowkidar - On 17.03.2004, the Trial Court had recorded in its zimni that summons sent to the defendant were received back with the report of evading service and in those circumstances, the Court had found that the defendant cannot be served in ordinary process and ordered the summons to be affixed on the outer door or some conspicuous part of his ordinary residence and that he be served through munadi - Since DS Chowkidar, who stepped into the witness box, has indirectly admitted that a person came from the Court and took his signatures for the purpose of getting the service effected upon the defendant, therefore, it cannot be said that there was no effort made by the Court for effecting service upon the defendant personally at the first instance before resorting to the mode of substituted service - Civil Procedure Code , 1908 (V of 1908), Order 9 Rule 13