1. In this petition under Article 227 of the Constitution of India, the Plaintiffs in R.A Suit No. 502/1589 of 1981, pending in the Court of Small Causes at Bombay, impugn the validity of the Order dated 27th March, 1984, made by the Court of Small Causes in Misc. Notice No. 532 of 1983, whereby the learned Judge set aside the ex parte decree of eviction made on 3rd March, 1982.

2. The only question urged in this petition is whether the service of the writ of summons on the Defendants is valid. The question arises in these circumstances:

The Defendants — State Bank of India — are the Plaintiffs' tenant of two flats on the 1st floor at 235/237, “Reman Smruti”, Vithalbhai Patel Road, Bombay-400004. The Plaintiffs instituted the suit for eviction on grounds available under the Bombay Rent Act. The writ of summons was despatched by registered post, acknowledgment due, at this address:

“State Bank of India, Central Office, New Administrative Building, Madam Cama Road, Bombay-400021.”

The registered packet was received by somebody whose signature is not legible. The rubber stamp shows the date of receipt as “19th June, 1981.” The Postal acknowledgment was received in the Court of Small Causes on 1st July, 1981. After a few adjournments, the ex parte decree was made as the Defendants failed to appear. The learned trial Judge, upon the application of the Defendants, held that the service of the writ of summons was not in accordance with the provisions of law and, therefore, set aside the decree.

3. Mr. Purohit, learned counsel for the Petitioners urged that Order XXIX of the Code of Civil Prorcedure hereinafter referred as the Code a special provision in respect of Corporation, excludes the application of the general provisions as regard to issue and service of summons laid down in Order V of the Code. Therefore, he urged, the service of summons by registered post in the manner in which it was done, complies with the special provisions in regard to “suits by or against Corporation” laid down in Order XXIX of the Code and, therefore, is valid. Learned Counsel for the Defendants, on the other hand, urged that Order V, by reason of its generally and pervasive operation has primacy in the matter of service of Court's process and unless the provisions of the O. V are complied with, the service cannot be said to be valid.

4. Since the validity of the service of the writ of summons depends upon the construction of the relevant provisions of the Code, a brief reference to these provisions is necessary.

The Code of Civil Procedure, 1908 was enacted to consolidate and amend the laws relating to the procedure of the Courts of Civil judicature”1. Therefore, all matters of procedure are consolidated in the Code. Section 27 of the Code requires that a summons may be served in the manner prescribed. The word “prescribe” has been defined to mean prescribed by the rules in the first Schedule to the Code2 which includes the rules under Order V and Order XXIX. Order V of the Code is captioned “Issue of Summons”. There is a sub-caption “service of Summons” under which occur Rules 9 to 30.

The Code of Civil Procedure (Amendment) Act (Act 104 of 1976) introduced far-reaching amendments. Rule 19A was one of the new rules3. The same Act omited from the Code rule 20A which enabled the Court to direct service of summons by post, if the summons was returned unserved4. Under sub-rule (2) of the repealed rule 20a, an acknowledgment purporting to have been signed by the addressee was prima facie proof of service. Rule 19A introduced by the aforesaid amendment empowers the Court to direct the summons to be served by registered post, acknowledgment due, addressed to the defendant or his agent empowered to accept the service at the place where the defendant or his agent actually resides or carries on business. However, Rule 19A stipulates that the service under Rule 19A is “in addition to and simultaneously with the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive). Therefore, Rule 19A reiterates that the service of summons shall be in accordance with Rules 9 to 19 but permits the additional mode which may be followed simulatneously with the service in accordance with the presiding rules.

5. It is thus clear that Rule 19A provides for a double mode of service. This provision is designed to prevent delay in service and frustrate attempt of evasion of service. Now, the omission of Rule 20A is not without significance. Under Rule 19A, service by post is “in addition to” the service in accordance with Rules 9-19 of Order V. The repealed rule permitted service by post “in lieu of” or “in addition to” the normal mode of personal service and could be resorted to “if the summons is returned unserved”.

The provision that service of summons by post could be (a) “in lieu of” or “in addition to” and (b) “if the summons is returned unserved”, were done away with by the legislature in the new Rule 19A. Under Rule 19A, the service by post has to be “in addition to” and “simultaneously with” the service under Rules 9-19 of Order V. Thus, the discretion to direct service by post “in lieu of” or “in addition to” the service under Rules 9-19 has been taken away. It is, therefore, clear that the service by post when permitted by the Court has to be necessarily an additional mode of service and not an alternative to service of summons under Rules 9 to 19 of Order V of the Code. Again such service is simultaneous with and not after the return of the summons sent under Rules 9-19 of the Order V. Thus, the legislature in unmistakable terms has recognised the primacy of the service of summons under Rules 9-19 of Order V of the Code.

6. Now the mode of service of summons under Order V of the Code may be understood. Rule 10 of Order V enjoins the Court to effect the service of the summons by delivering or tendering a copy. Rule 12 requires that the summons is served on the defendant in person unless he has an agent empowered to accept service. This mode of service has always been in the Code. The repealed rule permitted service by post as an alternative mode of service if the summons was returned unserved this resulted in two stages in the service of summons; firstly service under Rules 9-19 had to be attempted. If the summons is returned unserved, the Court permitted service by post “in lieu of” or “in addition to” such service. The second mode of service viz. by post, was not simultaneous with the service of summons under Rules 9-19. Rule 19A, by use of the words “in addition to” and “simultaneously with” emphasises that service by post is an additional mode of service. This is clear from the omission of the words “in lieu of” and introduction of the phrases “in addition to” and “simultaneously with” in Rule 19A of Order V of the Code which did not exist in the Code before the enactment of the Act 104 of 1976.

7. There is however Rule 21A5 in Order V of the Code which was introduced by this Court in exercise of its power under Section 122 of the Code. The Rule 21A was introduced by notification No. P6324/60 dated 4th August 1972. This rule is identical to the Rule 20A which was repealed by the Code of Civil Procedure (Amendment) Act 1976. Under Rule 21A, as under the repealed Rule 20A, service of summons by post is “in addition to or in substitution” of the service under Rules 9-19 of Order V. Again, like the repealed rule, Rule 21A too makes the acknowledgment purporting to have been signed by the defendant prima facie proof of service.

Rule 21A introduced by this Court by the notification issued in exercised of its power under section 122 of the code, prescribes service by a mode which is inconsitent with the mode of service laid down by rule 19a of order V. The inconsistency is this. Under Rule 19A, service of summons is an additional mode and is resorted to simultaneously with service under Rules 9-19 of Order V. Under Rule 21A, service by post may be in substitution of the personal service and is not simultaneous therewith.

The rules in the first Schedule, no doubt, take effect as it enacted in the body of the Code.6 The procedure for making rules by the High Courts under Section 122 is laid down in Sections 123 to 127 of the Code. However, such rules “shall not be inconsistent with the provisions in the body of this Code”7. The “rules” include all the rules in the First Schedule or made under Section 122 or 1258. There are, thus, two rules 20A and 21A which are inconsistent. Rule 19A was enacted later.

Section 97 of the Code of Civil Procedure (Amendment) Act 1976 lays down that “any amendment made or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the Principal Act as amended by this Act, stand repealed”9.

Therefore, the provision of Rule 21A which is inconsistent with Rule 19A stands repealed.

8. The effect of Order XXIX of the Code on the validity of service of summons on Corporations needs to be understood. As already stated, personal service of the writ of summons under Rules 9 to 19 is the primary mode of service of the process of the Court.

Rule 19A permits simultaneous and additional service by post but does not exclude personal service. Therefore, it is clear that the Defendant had to be served personally. Order V is captioned “Issues and Service of Summons”. The sub-heading Service of Summons precedes Rules 9-30 of Order V of the Code.

The general rule of construction is that words are understood according to their subject-matter10. The headings occurring over a group of sections-or rules are not introduced merely for the purpose of classifying the enactment. They constitute an important part of the Act itself and may be read as affording a better key to the construction of the sections or rules that follow them11. It follows, therefore, that the heading Issue and Service of Summons and the sub-heading Service of Summons are parts of the Code. They convey the legislative intent to legislate on the subject Service of Process. When you look out for the law relating to service of the process, it is Order V of the Code that must be considered.

Against the background of this legal position, consider what Order XXIX is about. Its heading is Suits by or against Corporations. Rule 1 of Order XXIX lays down the manner of subscription and verification of pleadings in suits by or against Corporations. It is analogous to Order VI, VII and VIII of the Code. Its subject is not Issue and Service of Summons. The heading of Order XXIX of the Code shows that it lays down general provisions in respect of suits by or against Corporations. It is not a special provision relating to service of process of the Court. rule 212 of order xxix on which Counsel for the petitioner relies, stipulates that where Corporation is the Defendant, summons may be served on the secretary, or on any director, or other principal officer of the Corporation. The summons may be served on the Corporation by leaving it or sending it by post “at the registered office”. The submission that Order XXIX excludes personal service stipulated by Order V of the Code is founded on Rule 2(b) of Order XXIX. The important words in Rule 2 are “subject to any statutory provision regulating service of process.” This means that if there be any statutory provision “regulating service of process”, such provision will override the provision of Rule 2 of Order XXIX of the Code. The “statutory provision regulating service of process” is contained in Order V of the code. order xxix of the code is general provision in regard to suits by or against Corporations. Therefore, the application of Rule 2 of Order XXIX is subject to the provisions of Rules 9-30 of Order V. It follows that the primary mode of service by delivery of the summons to the defendant prescribed by Order V of the Code is not excluded by Rule 2 of Order XXIX of the Code. Indeed, the words “subject to any statutory provision regulating service of process” recognise the overriding operation of the primary mode of service of summons enacted by Order V of the Code.

It may be argued that since Rule 2(b) enables Service of Summons by “sending it by post addressed to the Corporation at the registered address”, such “sending” by post is the only mode of service of process in suits referred to in Order XXIX of the Code. This argument ignores that sending by post has not been prescribed as a mode “in lieu of” of the service of summons in accordance with Order V of the Code.

9. Is there anything in the mode of service of process prescribed by Order V of the Code which should regulate the Service of Summons on Corporations? Order V of the Code regulates services of Court's process on all defendants — corporations or individuals. Significantly the service of process on defendants who are Corporations has not been excepted from the application of Order V of the Code. There are no words in any rule of Order V which suggest that “defendant” in Order V excludes defendant who is a corporation. Order V applies to all defendants. But the mode of service of summons on corporations has been subjected to Order V of the Code. This is so, because as already stated, Rule 2 of the Order XXIX commences with the words “subject to any statutory provision regulating service of process”.

Rule 2(a) of Order XXIX prescribes service of summons “on the secretary, or on any director, or other principal officer of the corporation.” By the very nature of its corporate personality, a corporation cannot receive the process except through its officers. In the case of a natural person the summons shall be served “on the defendant in person”13. This is the primary mode of service of summons on all defendants. In my opinion, the legislature has extended the application of this primary mode of service to corporations by naming specified officers of the corporations on whom the process shall be served. In the case of a Corporation which is a legal/artificial person as distinguished from a natural person, its officers designated in Rule 2(a) of Order XXIX of the Code represent the “person” of the Corporation for the purpose of receiving the summons. The legislature, aware of the nature of corporate legal personality and the inherent difficulty of identifying the “person” in the Corporation for the purpose of service of summons “on the defendant in person”, introduced designated officers in Rule 2(a) of Order XXIX of the Code. Service of summons on the officers referred to in Rule 2(a) of Order XXIX is the legislative adoptations of the rule of personal service to the special character of Corporations. The officers referred to in Rule 2(a) of Order XXIX represent the “person” of the Corporation for the purpose of service of summons. Therefore, when a summons is tendered to such officer, it is served on the Corporation “in person”. When the summons is served on a Corporation in this manner, the service of summons is in accordance with the primary mode of service prescribed by Order V of the Code.

10 The analysis of the provisions of order v and order xxix of the code made in the foregoing paragraphs is not inconsistent with the Supreme Court's verdict in Shalimar Rope Works Ltd. v. Abdul Hussain H.M Hasan Bhai Rassiwala, AIR 1980 SC 1163 case on which the petitioners' counsel relies: As I understood the judgment, the question of service of summons on the Corporation by registered post did not arise before the Supreme Court. The facts of that case reveal that the summons was delivered by the bailiff personally to an Assistant who was not an officer named in Rule 2(a) of Order XXIX of the Code. [Paragraphs 2 and 8 of the Report.]

A second feature of the facts of Shalimar Rope Works case is that the suit out of which the case arose was instituted on 24/2/1975, a year before the Code of Civil Procedure (Amendment) Act 1976, Act 104 of 1976, was enacted and Rule 19A was introduced in Order V of the Code. Therefore the effect of Rule 19A of Order V of the Code did not fall for consideration.

Thirdly, the question was whether a summons delivered to a person not authorised to receive it on behalf of the defendant, can be said to be validly served for the reason that it was “served” on the Corporation “by leaving it” at the registered office. In other words, the validity of service by post without making it “in addition to” and “simultaneously with” the service under Order V of the Code, did not arise for consideration by the Supreme Court.

11. Notwithstanding the three differentiating features, the Supreme Court's view supports the analysis made by me.

Firstly, the primacy of Order V of the Code is recognised by the Supreme Court while rejecting the argument that sending or leaving the summons was significant the Supreme Court laid down that “the meaning of clause (b) (of Rule 2 of Order XXIX) has got to be understood in the background of the provisions of the Code in Order V…..” [Paragraph 7 of the Report.] Then quoting Rule 17 of Order V, the Supreme Court made it clear that it is only after the personal service becomes impossible due to refusal by non-availability of the defendant or absence of an agent, that the mode of service laid down by Rule 2(b) of Order XXIX may be resorted to paragraphs 7 and 8 of the Report. Therefore, the Supreme Court has affirmed the need to attempt personal service and has rejected the argument that summons may be served under Rule 2(b) of Order XXIX without regard to Order V of the Code. Therefore, the primacy of the mode of service under Order V is clearly established.

Again the Supreme Court has rejected the argument that in the case of Corporations, Order XXIX of the Code excludes the application of Order V of the Code. The Supreme Court observed:

“Rule 2 is not an exhaustive provision providing for all modes of service on the company in the sense as to what is meant by service of summons on the Secretary, Director or Principal Officer. [Paragraph 6 of the Report.]

12. In my opinion, the Supreme Court's judgment in Shalimar Rope Works Ltd. v. Abdul Hussain H.M Hasan Bhai Rassiwala, AIR 1980 SC 1163 does not support the arguments of Mr. Purohit: it repudiates them.

13. Order V of the Code of Civil Procedure is the statutory provision regulating service of process of the Courts of Civil judicature in India. The service of summons on defendants, whether individuals or corporations, is governed by the provision of Order V of the Code. Order XXIX of the Code of Civil of Civil Procedure enacts general provisions in respect of suits by or against corporations and is not intended to lay down the general law in regard to the issue and service of process of Courts of civil judicature.

Since the procedure for service of process on corporations laid down in Order XXIX of the Code is “subject to any statutory provision regulating service of process”, the service of summons on corporations is governed by the provision of Order V of the Code which lays down the primary mode of service of summons on all defendants, individuals, or Corporations. It follows that the service of summons has to be made on defendants in person in accordance with Order V of the Code, subject however to the stipulation that in the case of Corporations such service shall be made on the officers of the Corporation named in Rule 2(e) of Order XXIX of the Code. The service by post under Rule 19A of Order V of the Code may be effected, but it shall be in addition to and simultaneously with the issue and service of summons in the manner provided in Rules 9 to 19 of Order V of the Code.

Rule 21A introduced by this Court in exercise of its power under section 122 of the code is inconsistent with the mode of service by post prescribed by rule 19a of order V. Therefore, in view of Section 97 of the Code of Civil Procedure (Amendment) Act 1976 — Act 104 of 1976, Rule 21A stands repealed.

14. In the suit out of which this petition arises, the summons was served at the registered address of the defendant without attempting to serve the summons personally on the officers named in Rule 2(a) of Order XXIX of the Code. Since the mode of service resorted to was by post and was not in addition to and simultaneously with the personal service required by law, the service of summons is not valid. Nor is it proved that the registered envelope was received by an officer named in Rule 2(a) of Order XXIX of the Code. The learned trial Court was right in holding that the summons on the defendants was not validly served.

15. There is no merit in this petition. It is accordingly dismissed with costs. Rule discharged with costs.

Petition dismissed.