A defendant deliberately avoids service of summons. Plaintiff applies for substituted service. What orders can court pass?

The Gateway to Substituted Service: Order V Rule 20

The starting point is Order V Rule 20 of the Code of Civil Procedure. The rule provides that 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 substituted means. The use of the word "shall" here is significant — once the court is satisfied of the conditions, the ordering of substituted service is not discretionary but obligatory. The question then becomes: what exactly can the court order?

The Threshold Requirement: Satisfaction of the Court

Before any order of substituted service is made, the court must form a genuine satisfaction from the material placed before it. The plaintiff's application will typically be supported by the reports of the process server and an affidavit demonstrating the circumstances of the failed attempts at personal service. The court may examine the serving officer on oath under Rule 19, and where the return has not been verified by an affidavit of the serving officer, such examination is mandatory. The court may also "make such further inquiry in the matter as it thinks fit" before it either declares that the summons has been duly served or orders such further service as it thinks fit. This inquiry is the court's safeguard against a plaintiff who is careless with service yet eager to proceed ex parte.

It is not enough that a single attempt at service failed. The process server must show that he used "all due and reasonable diligence" in attempting to locate and serve the defendant. Under Rule 17, only when the defendant refuses to sign the acknowledgment, or when despite all reasonable diligence the defendant cannot be found and there is no agent or other person on whom service can be effected, does the process server resort to affixing the summons. This report of the process server becomes the foundation on which the plaintiff builds the application for substituted service.

The Orders the Court Can Pass

Once the court is satisfied, Order V Rule 20 empowers it to make one or more of the following orders:

First — Affixture on the Courthouse and the Defendant's Premises. The court shall order a copy of the summons to be affixed in some conspicuous place in the courthouse 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. This is the foundational mode of substituted service and operates together — affixture at the courthouse gives the order public character, and affixture at the residence gives it personal character directed at the defendant.

Second — Publication in a Newspaper. Sub-rule 1A, inserted by the Amendment Act of 1976, specifically contemplates service by advertisement in a newspaper. When the court orders service in this manner, it must ensure that the newspaper is 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. This provision prevents the court from ordering publication in an obscure or irrelevant publication and ensures that the order is genuinely calculated to bring the summons to the defendant's notice. The object of substituted service is to bring the matter to the notice of the person for whom it is intended — it must always conform to this purpose, otherwise it cannot be recorded as in accordance with law and cannot constitute sufficient service.

Third — Any Other Manner the Court Thinks Fit. The concluding words of Rule 20(1) — "or in such other manner as the Court thinks fit" — vest the court with a residual discretion to fashion any other mode of service it considers appropriate in the circumstances. This might include service through registered post to a known address, service on a known relation or agent, or any other mode likely to bring the summons to the defendant's knowledge. The key principle that governs all these modes is that the alternative manner chosen must be as likely to give notice to the person as personal service would have been.

The Legal Force of Substituted Service: Equal to Personal Service

Once the court orders substituted service and the order is complied with, the legal effect is unequivocal. Order V Rule 20(2) provides that service substituted by order of the court shall be as effectual as if it had been made on the defendant personally. This is a complete and conclusive fiction — the law treats the defendant as having received the summons in person. He cannot later contend that he never received actual notice, and his absence from court after such service will be treated as a wilful failure to appear.

As a direct consequence, Rule 20(3) empowers the court to fix such time for the appearance of the defendant as the case may require. Since substituted service may take time — particularly if service by newspaper publication is ordered — the court has the flexibility to set a longer date for the defendant's appearance rather than mechanically applying the standard thirty-day period. This is a practical and fair safeguard that prevents the defendant from being put in default simply because the mode of service was slower.

The Connection to Proceedings Ex Parte

Where the defendant fails to appear even after substituted service has been effected, the court does not automatically render a decree — it must first be satisfied that the substituted service was properly carried out and complied with the requirements of the order. The provisions of Rule 19 and Order IX govern the consequences of non-appearance after service. If the court finds that the defendant, after valid substituted service, has still chosen not to appear, it may proceed to hear the suit ex parte under Order IX Rule 6. The defendant who has deliberately kept out of the way and then suffered an ex parte decree after substituted service is in a far weaker position than one who was never served at all, for the law will treat him as having had notice in full.

No Mechanical Ritual

The courts have repeatedly cautioned that substituted service must not be reduced to a meaningless ritual. The Supreme Court, in considering the object of the provision, has made clear that where equally efficacious modes of publication are available, the court must choose one that is genuinely and realistically calculated to reach the defendant — it would be "ridiculous to insist on an obsolete form of publication as if it were a ritual." Similarly, the publication in a newspaper directed by the court must be strictly followed; where the court directs one newspaper and publication is made in another, the question of whether service is valid will depend on whether the notice was published in a paper equally likely to reach the defendant. The ultimate criterion is always whether the mode adopted was reasonably calculated to bring the matter to the defendant's attention — not whether the formal steps were technically gone through.

The law therefore presents a carefully designed, escalating framework: from ordinary service, to affixture, to newspaper publication, and to any other court-directed mode — each step validated by the court's supervision and culminating in a deemed personal service that places the deliberately evasive defendant in no different a position than one who was formally and personally served.