In regard to service of summons to Indian residing outside India, a Three Judge Bench of the High Court of Kerala laid down the following conclusions in Charuvila Philipose Sundaran Pillai & Another v P. N. Sivadasan & Other.
The Guidelines are as follows: –
- The mode of service contemplated in Hague Service Convention is enforceable even without an enabling or corresponding legislation. The mode of service to defendants residing abroad should essentially be the one contemplated in the Convention
- If the other contracting country has no objection, the Court can effect service through postal channels as envisaged under Order V Rule 25 of CPC. In this case, the Court should ensure that the summons/ notice is served upon the defendant.
- The decision in Mollykutty v Nicey Jacob is overruled to the extent that it states that service of summons can only effected through the Hague Service Convention, since service of summons can be effected through postal means also when destination state does not object to it.
The high court was answering a reference by a Division Bench as to whether a summons issued by the Court to a defendant residing outside India has to be effected through modes mentioned under Order V Rule 25 of CPC or as per the Convention on The Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial matters (the Hague Service Convention).
The Division of the High Court in Mollykutty v Nicey Jacob held that summons to defendant residing outside India could only be served as per the Hague Service Convention, since India is a signatory to it and not directly. Another Division Bench doubted the correctness of the decision in Mollykutty (supra). Therefore, this issue was sent for reference to a three-member Bench.
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