Service is effected on defendant's son who refuses to accept. Is service complete?

The Governing Provision: Order V, Rule 15

The Code begins with an unambiguous preference for personal service upon the defendant. Order V, Rule 12 declares that wherever practicable, the summons shall be served on the defendant in person. Service on a family member is only a fallback — and a conditional one at that.

Order V, Rule 15 authorises service on an adult family member only when three conditions are simultaneously satisfied: first, the defendant must be absent from his residence at the time; second, there must be no likelihood of his being found at the residence within a reasonable time; and third, he must have no agent empowered to accept service on his behalf. The rule further clarifies, through its Explanation, that a servant is not a member of the family within the meaning of this rule — so the domestic help answering the door will not do.

Now, the son in question: if he is a major — that is, an adult — and he resides with the defendant, service upon him is, in principle, authorised under Rule 15. A process-server cannot validly tender the summons to a minor son, and courts have consistently held that service of summons on a boy who is not a major is not valid. Subject to the son being an adult and actually residing with the defendant, the law treats him as a competent recipient.

The Refusal: Where Rule 17 Takes Over

Here comes the critical turn. The son refuses to accept. What now?

Order V, Rule 17 prescribes the exact procedure for this situation. When the defendant, or his agent, or such other person — which includes an adult family member under Rule 15 — refuses to sign the acknowledgment, the serving officer is not left without a remedy. The rule commands him to affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. He must then return the original to the court with a detailed report explaining the circumstances, naming the person who refused, and identifying the premises.

The law on this point is firm: a mere refusal to accept does not by itself constitute due service. The affixation is not optional — it is mandatory. Courts have held that where a defendant refuses to sign the acknowledgment, leaving a copy on a table inside the house is wholly inadequate; the copy must be affixed on the outer door. The Madhya Pradesh High Court put this principle with particular clarity: refusal to accept summons or to sign the acknowledgment will not amount ipso facto to due service unless a copy of the summons is affixed on the outer door or some other conspicuous part of the house.

What the Serving Officer Must Do Before Affixing

There is a further duty the courts have read into Rule 17, and it is important. The rule requires that before resorting to affixation, the serving officer must use all due and reasonable diligence to find the defendant. This means more than merely noting that the defendant is not present. In a situation where only the son is at home and he refuses, the serving officer must inquire of the son where the defendant is, when he is expected, and otherwise take reasonable steps to locate him. As courts have observed: if a serving officer goes to a defendant's house but does not find him there, and the defendant's adult son refuses to accept service, these facts by themselves do not justify the officer in resorting to affixation — he must first inquire of the son as to where the defendant is and otherwise exercise due and reasonable diligence. A single visit without inquiry is generally insufficient unless the officer records that there is truly no likelihood of the defendant being found within a reasonable time.

After Affixation: The Court's Role Under Rule 19

Affixation under Rule 17 does not automatically complete service. The summons is then returned to court, and Rule 19 takes over. The court shall — if the return has not been verified by the affidavit of the serving officer — examine the officer on oath touching his proceedings, and may do so even if the return is verified. After this examination, the court shall either declare that the summons has been duly served or order such service as it thinks fit.

This declaration by the court is not a formality — it is a legal imperative. The Kerala High Court has emphasised that in the absence of such a declaration, the mere endorsement of the serving officer that the defendant refused to accept the summons is not enough to constitute sufficient service. The absence of a formal declaration of due service has been held by the Madras High Court to render an ex parte decree illegal.

The Net Result

To answer the question directly: when the defendant's adult son refuses to accept the summons, service is not automatically complete. It becomes complete only if:

• The son is an adult who resides with the defendant

• The defendant was genuinely absent with no likelihood of being found soon

• The serving officer exercised due diligence in trying to locate the defendant

• The officer affixed a copy of the summons on the outer door of the house

• The officer filed a detailed report with the court

• The court examined the serving officer and formally declared the summons to have been duly served

Miss any one of these steps, and the service is defective. An ex parte decree passed on the basis of such defective service remains vulnerable to being set aside under Order IX, Rule 13, should the defendant later appear and demonstrate that he never had proper notice of the proceedings.