2011(6) ALL MR 297
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

S.A. BOBDE AND M.N. GILANI, JJ.

Rajkumar Sampatraoji Kuthe Vs. The State Of Maharashtra & Ors.

Civil Application No.666 of 2011,Civil Application No.667 of 2011,Letters Patent Appeal No.373 of 2011,Writ Petition No.3898 of 2011

16th September, 2011

Petitioner Counsel: Mr. R.L. Khapre
Respondent Counsel: Mrs. Bharti Dangre
Other Counsel: Mr. R.S. Kale

Civil P.C. (1908) O.5 R.15 - Service on adult member - Service can be effected either on male or female member of the defendant's family - Restrictions provision in Bombay High Court amendment that service of notice is to be effected only on male member should be ignored. (Para 6)

JUDGMENT

JUDGMENT :- Mr. Khapre, learned counsel for the appellant, states that the notice of this Letters Patent Appeal has been meant to be served on respondent no.5. However, returned unserved by the bailiff on the ground that there was no male member of the family when the bailiff went to the house to serve the notice. Mr. Khapre, learned counsel for the appellant, further refers to the affidavit of the appellant's relative, who was accompanied with the bailiff. In the said affidavit, it is stated that the bailiff gave a preintimation to the respondent no.5 that he intends to serve a notice of the Letters Patent Appeal on respondent no.5. As a result of this intimation, when the bailiff reached the house of respondent no.5, there was no adult male member present and the only person present was the wife of respondent no.5. The bailiff, therefore, made an endorsement to that effect and returned the notice unserved. It appears that this notice has been returned unserved because the bailiff apparently followed the amendment made by the Bombay High Court to Order V rule 15 of the Code of Civil Procedure, 1908, which permits service only on any adult male member of the family. The amendment reads as follows:

"[Bombay] - For the existing rule 15 and its marginal note, substitute the following as rule 15 and marginal note:

15. Where service may be on male member of defendant's family - When the defendant cannot for any reason be personally served and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him. ExplanationA servant is not a member of the family within the meaning of this rule."

This rule is ex facie at variance with Order V Rule 15 as enacted by the Code of Civil Procedure by the Parliament, which reads as follows:

"15. Where service may be on an adult member of defendant's family - Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him."

This was substituted by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 01.02.1977.

2. Mr. Khapre, learned counsel for the appellant, submits that Order V Rule 15 of the Code of Civil Procedure as framed by the Bombay High Court is restrictive and enables service only on an adult male member of the family, who is residing with the defendant. The learned counsel further submits that this not only at variance with the rules framed by the Parliament, but is inconsistent therewith since Order V Rule 15 framed by the Parliament permits service to be made on any adult male member of the family, whether male or female, who is residing with defendant.

3. In this regard, a reference may be made to Section 16 to the Code of Civil Procedure (Amendment) Act, 2002, amending the Code of Civil Procedure 1908. Section 16 (1) which is relevant, reads as follows:

"16. Repeal and savings.- (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed."

We find that the amendment made by Bombay High Court before the enactment of the Amendment Act, 2002 is inconsistent with the principal Act. We find that even the earlier amending Act namely Code of Civil Procedure (Amendment) Act, 1999 contained a provision identical to Section 16 of the 2002 Act, reproduced supra. That provision, namely Section 32 of the Code of Civil Procedure (Amendment) Act, 1999, reads as follows:

"32. Repeal and savings.- (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed."

The effect of the Repeal and Savings clause contained in the Code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure (Amendment) Act 2002, is clearly to negate any amendment made by a State Legislature or a High Court, which is inconsistent with the principal Act for the obvious purpose of brining about uniformity in the Code of Civil Procedure throughout the Country.

4. Thus the restrictions placed by the Bombay Amendment that service of summons may be made only on an adult male member of the family residing with the defendant is inconsistent with Order V Rule 15 of the Code of Civil Procedure, 1908, which permits service to be made on any adult male member of the family, whether male or female and must, therefore, give way to the provisions of the principal Act as enacted by the Parliament.

5. In Ganpat Giri ..vs.. IInd Additional District Judge, Balia and ors., AIR 1986 SC 589 the Supreme Court, in a similar situation, observed as follows :

"10. It is thus seen that even though R. 72 was not amended by the Amending Act its retention in the form in which it was in the Code had been recommended by the Law Commission for the reasons given by it.

11. Now reverting to S. 97 (1) of the Amending Act, the High Court was in error in holding that because no amendment had been made to R. 72 by the Amending Act, S. 97(1) had no effect on the Rule as it was in force in the State of Uttar Pradesh before the commencement of the Amending Act. As observed earlier, the effect of S. 97 (1) is that all local amendmentsmade to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code had been amended or modified by the Amending Act and that was subject only to what was found in subsec. (2) of S. 97. SubSec. (3) of S. 97 provides that save as otherwise provided in subsec. (2) the provisions of the Code as amended by the Amending Act shall apply to every suit, proceeding appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fact that the right or cause Of action in pursuance of which such suit, proceeding appeal or application is instituted or filed had been acquired or had accrued before such commencement. Subsec. (3) of S. 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to subsec. (2) of S. 97."

6. In view of above, the subordinate courts are directed to ignore the restrictions contained in Order V Rule 15 of the Code of Civil Procedure, as amended by the Bombay High Court with effect from 01.10.1983, which requires service to be done only on adult male member of the family and instead follow Rule 15 of Order V of Code of Civil Procedure 1908 as enacted by Parliament, which reads as follows:

"15. Where service may be on an adult member of defendant's family.- Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.

Explanation.A servant is not a member of the family within the meaning of this rule."

Order accordingly.

7. In the present case, the bailiff is directed to effect substituted service by affixing on respondent no.5, if occasion arises.

By way of interim relief, it is directed that the votes of respondent no.5 shall be treated as tendered votes and a separate account shall be maintained thereof. The result of the election shall be declared after following the above procedure of maintaining tendered votes.

Order accordingly.