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India: Changing face of serving Summons: From Post to What’s App

SS Rana & Co

India June 4 2018

Several Courts around the country are experimenting the usage of technology and in judicial
proceedings especially while serving of official documents. Recently, the Delhi High Court gave an
order setting a milestone, “Double tick on WhatsApp is a prima facie proof of delivery of summons.”
The primary method of serving summons is by personal service, which means that someone must
physically deliver the summons document to the other person. There may be certain restrictions
depending upon the jurisdictions and whether the case is civil or criminal. The alternative method is
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 if the
serving officer after due diligence is not able to trace the person. The Court shall also in addition to
personal service, may direct the summons to be served by registered post at the place where the
defendant, or his agent, actually and voluntarily resides or carries on business or personally works for
gain.
The summons in most cases are not served timely due to reasons like shortage in the manpower or
lack of training and more often due to the challenging task of dealing with people who avoid service
of process. To address the existing bottlenecks and introduce reforms in the rules and procedures
relating to process service, important legislative changes have been introduced in the procedural
laws. Further, High Courts have also adopted practical steps to address the problems of delay caused
due to process service by introducing changes in rules and policies. The Code of Civil Procedure,
1908 was amended in 2002 which included electronic means of serving summons in Rule 9 and 9A.
The Hon’ble Supreme Court of India in the case of Central Electricity Regulatory Commission Vs
National Hydroelectric Power Corpn. Ltd. & Ors., directed that in commercial litigation and in those
cases where the Advocates seek urgent interim reliefs, service of notices may be effected by E-mail,
in addition to normal mode of service. The Courts have inducted the “electronic means” in their
respective rules in order to speed up the summons process. The Delhi High Court notified on
February 9, 2011, “Delhi Courts Service of Processes by Courier, Fax and Electronic Mail Service (Civil
Proceedings) Rules, 2010” wherein service by fax and electronic mail was provided for. Similarly,
Bombay and Andhra Pradesh High Court have amended their rules for the same. This helps cut down
the cost & effort that goes into serving notices to defendants, especially those who do not want to be
found.
However, recently the Courts have taken landmark judgements and added WhatsApp to the list of
electronic means trying to tackle the problem. The first one to send summons by WhatsApp is
Financial Commissioner (FC) Court in Haryana, a quasi-judicial body. In April 2017, Senior IAS officer
Ashok Khema ordered that summons in a partition suit be served via WhatsApp.
In the same month, Justice Gautam Patel, of the Bombay High Court set a precedent allowing serving
of summons through WhatsApp in a copyright infringement case. The case concerned allegations of
copyright infringement against Producers of the Kannada movie ‘Pushpaka Vimana’ that was
released in the beginning of 2017. Justice Patel said “It cannot be that our rules and procedure are
either so ancient or so rigid (or both) that without some antiquated formal service mode through a bailiff
or even by beat of drum or pattaki, a party cannot be said to have been ‘properly’ served. The purpose of
service is put the other party to notice and to give him a copy of the papers. The mode is surely
irrelevant. We have not formally approved of email and other modes as acceptable simply because
there are inherent limitation to proving service. Where an alternative mode is used, however, and service
is shown to be effected, and is acknowledged, then surely it cannot be suggested that the Defendants
had ‘no notice’…
…Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of
that evasion.”
Soon after on May 4, 2017, the Delhi High Court in Tata Sons Ltd & Ors. Vs. John Doe(s) & Ors., allowed
the Plaintiff to serve the summons on one of the Defendant through WhatsApp, text message & email,
and to file affidavit of service.
Around the same time, Rohini Civil Court in Delhi, accepted the blue double-tick sign in a WhatsApp
message as valid proof that a case related notice had been seen by the message's recipients. A man
served the notice to five people including his son, daughter-in-law, her parents and her friends through
WhatsApp in connection with a family dispute (trespass to property). He then took the color printout of
the sent message with the blue double tick, which indicates that the message has been read - visible in
it. Senior Civil Judge cum Rent Controller (North) Sidharth Mathur concluded based on the proof that
the Defendants had acquired the knowledge of the scheduled hearing.
The Delhi Metropolitan Court, earlier in March this year allowed a woman to serve summons to his
husband in Australia through WhatsApp. In this case, the man had left for Australia in the year 2015
for pursuing further studies leaving behind the complainant, a homemaker, and their minor daughter,
who was two years old then. The complainant continued to stay in their rented accommodation in
Noida but soon joined her parents in Delhi after the husband stopped paying rent for the house. After
a few months, he severed all contacts with the complainant and never reciprocated to her attempts to
contact him. The complainant also learnt through sources that he had visited India last year but did
not make any efforts to meet her or their daughter. Therefore, the woman filed a case of domestic
violence and also sought maintenance for their daughter and herself. 
In March, Pal and Kumar had suggested to the magistrate that the summons can be served via
WhatsApp etc since summons sent from past eight months being returned, as the man is not staying
at the last known address in Delhi. Advocate Kumar also remarked that it takes over two weeks for
summons to be served to anyone outside India and the Ministry had raised objections, as the
summons sent to the man in Australia has changed his address, and therefore they are left with no
other option but to request the Court to allow him to summon through WhatsApp, SMS and e-mail.
Following the earlier order of the Court, the wife served the summons to her husband via email and
mobile. However, the husband failed to respond. The husband had earlier appeared before the court
in some other matter and knew well that his summoning was urgent in this matter as well. The
documents submitted before the Court reveal that there is “Double Tick” on the WhatsApp messages
sent. The Court observed that this implies that the copy of the summons has been delivered on the
mobile number of the estranged husband. The case will now be heard in May.
CONCLUSION
The procedural laws and the Courts in their rules and policies have laid down a proper procedure and
method for serving summons. In addition to the traditional methods the Courts have now recognized
WhatsApp as one. The Courts have found a completely new purpose of WhatsApp. However, it is
essentially important to understand that the electronic means, least of all WhatsApp, are not going to
replace the “regular models”. They are meant for those exceptional cases where the Defendants are
hiding and evading their appearance in Courts.