MANU/GJ/0147/2002

Equivalent Citation: AIR2002Guj388, 2002GLH(2)494, (2002)2GLR1649

IN THE HIGH COURT OF GUJARAT

Misc. Civil Application No. 201 of 2001 in Spl. C.A. No. 11136 of 2000
Decided On: 01.05.2002
Appellants: Suo Motu
Vs.
Respondent: Registrar, High Court of Gujarat
Hon'ble Judges/Coram:
J.M. Panchal and H.H. Mehta, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Suo Motu, Adv.
For Respondents/Defendant: S.N. Shelat, Adv. General assisted by A.D. Oza, G.P. and
Paresh Upadhyaya, Adv.
For Gujarat High Court Advocates' Association: B. Vakil, Senior Adv.
JUDGMENT
J.M. Panchal, J.
1. The learned single Judge has referred following two issues for consideration of the
Division Bench :-
(1) Whether, personal service by a litigant or a clerk of the Advocate or any
other person, who is not an officer of the Court, is a recognised mode of
service? If yes,
(2) Whether, the Registrar, Gujarat High Court is empowered to order direct
service or the Court alone can permit direct service?
2. The Reference arises in the context of following facts :
Special Civil Application No. 11136 of 2000 was placed before the learned
single Judge of this Court for admission hearing and the Court had issued
notices to the respondents on October 20, 2000 making them returnable on
November 20, 2000. The respondent No. 1 has entered its appearance through
the learned Government Pleader, but no appearance at the relevant time was
entered by the respondent No. 2. Mr. B. S. Patel, learned Advocate appearing
for the petitioner had stated at the Bar that the respondent No. 2 was served
directly by his clerk and the petition was ripe for hearing. On inquiry being
made by the learned single Judge, Mr. B. S. Patel, learned Advocate for the
petitioner had stated that the Court had not permitted direct service to the
respondents, but he had applied to the Registrar for such permission and as
the Registrar had, under the powers conferred on him under Rule 7 of the
Gujarat High Court Rules, 1993 ("the Rules" for short), granted such
permission, the respondent No. 2 was served directly by his clerk. Thereupon,
the learned single Judge had expressed the opinion that two important
questions relating to service of Notice/Rule Nisi ordered to be issued by the
Court were arising for consideration of the Court : (i) Whether, the Registrar

16-06-2020 (Page 1 of 10) www.manupatra.com Nirma University

 has power to permit the petitioner/appellant/applicant to effect direct service
on the respondent/ opponent, and (ii) when a petitioner/ appellant /applicant
has been permitted to effect direct service, can the service be effected by the
clerk of the Advocate.
Mr. B. S. Patel, learned Counsel for the petitioner had submitted that Rule 7 of the
Rules empowers the Registrar, inter-alia, to comply with all the requirements of the
law and the Rules; whereas Rule 12(e) of the Rules empowers the Registrar to permit
service of notice or Rule Nisi directly, and therefore, permission granted by the
Registrar to serve the respondent No. 2 directly should not be treated as illegal. The
learned single Judge referred to Rules 7, 12(e), 13 and 181 of the Rules as well as the
provisions of Order 5, Rule 9, Rule 17, Rule 18, Rule 19-A & Rule 20, and concluded
that the only recognised modes of service are : (1) personal service by an officer of
the Court, (2) service by post, (3) service by affixing, and (4) the substituted service.
In view of the said conclusion, the learned single Judge has expressed an opinion that
the personal service by a litigant or a clerk of the Advocate or any person who is not
an officer of the Court, is not a recognised mode of service. Further, the learned single
Judge on interpretation of Clause (e) of Rule 12 of the Rules has expressed the
opinion that the Registrar is not empowered to order direct service and the Court alone
can permit the direct service. The decision rendered by the Division Bench of this
Court in Suo Motu v. A. N. Patel MANU/GJ/0298/1996 : 1999 (1) GLR 8 was brought
to the notice of the learned single Judge to highlight the point that the direct service
was a recognised mode of service, but the learned single Judge was of the opinion
that the Division Bench had no occasion to examine the question, whether the direct
service is a recognised mode of service and whether the Registrar, Gujarat High Court
is empowered to permit direct service and has opined that the propriety demands that
the issues referred to earlier should be referred to Division Bench for its consideration.
Under the circumstances, by order dated January 11, 2001/ January 20, 2001, the
learned single Judge has made reference to the Division Bench to decide the above-
mentioned two issues. On Reference being made, the same has been registered by the
office as Misc. Civil Application No. 201 of 2001.
3. The Reference was placed for preliminary hearing before the Court on July 20, 2001
and we had issued notice to the Registrar, Gujarat High Court making it returnable on
July 30, 2001. We had also requested the learned Advocate-General, Gujarat State and
the learned President, Gujarat High Court Advocates' Association, to assist the Court in
the matter. Again, the matter was placed for hearing before the Court on August 6,
2001 and the learned President, Gujarat High Court Advocates' Association had
expressed the view that the decision which may be rendered by the Division Bench of
this Court is likely to affect the learned Advocates practising in the Court, and
therefore, by an order dated August 6, 2001, we had directed the office to notify to the
learned Advocates practising in the Court that any member of the Gujarat High Court
Advocates' Association was welcome to participate in the proceedings before the
Court. Accordingly, Shri S. B. Vakil, learned Senior Advocate representing Gujarat
High Court Advocates' Association, whereas Shri S. N. Shelat, learned Advocate-
General assisted by Mr. A. D. Oza, learned Government Pleader and Mr. Paresh
Upadhyaya representing the Registrar, Gujarat High Court, have appeared in the matter
and addressed the Court.
4 . Shri S. B. Vakil, learned senior Advocate drew the attention of the Court to the
provisions of Sections 27, 28, 29, 121, 122, 125, 128(2)(a), Order 5, Rule 1(2), Order
5, Rule 9, Rule 10, Rule 17, Rule 19-A, Rule 20, Order 41, Rule 14, Order 42, Rule 1,
Order 43, Rule 2, Order 48, Rules 1 & 2 and Order 49, Rule 1 C.P.C., as well as Rules
12(a), 12(e), 13(b), 14, 181, 448 & 455 of the Gujarat High Court Rules, 1993, and
contended that personal service by a litigant or his recognised agent or a recognised

16-06-2020 (Page 2 of 10) www.manupatra.com Nirma University

 clerk of the Advocate or by an Advocate, is a recognised mode of service and it would
not be correct to hold that personal service by a litigant or a recognised clerk of the
Advocate or any other person, who is not an officer of the Court, is not a recognised
mode of service. The main thrust of the argument of Shri Vakil, learned Senior
Advocate was that Order 5, Rule 9 C.P.C. provides that where the defendant resides
within the jurisdiction of the Court in which the suit is instituted or has an agent
resident within that jurisdiction who is empowered to accept the service of the
summons, the summons shall, unless the Court otherwise directs, be delivered or sent
to the proper officer to be served by him or one of his subordinates and when the
Court permits service of summons by direct service, it would mean that the Court has
otherwise directed than provided under the Rule, and therefore, direct service on the
respondent/opponent is contemplated by law. The learned Counsel brought to the
notice of the Court the provisions of the Code of Civil Procedure as amended by Code
of Civil Procedure (Amendment) Act, 1999, which have not come into force, and
pointed out that if the amendment is brought into force, not only delivery of summons
to the plaintiff or his agent by direct service would be permissible, but service of
summons by even Fax message or by Electronic Mail service or by Courier service and
such other means as may be prescribed by the rules, would be permissible, and
therefore, the phrase "unless the Court otherwise directs" appearing in Order 5, Rule 9
being of wide import, should be construed to mean that it takes within its sweep direct
service also. It was contended that C.P.C. does not limit or qualify Court's power under
Order 5, Rule 9(1) to otherwise direct because the phrase "unless the Court otherwise
directs" would mean by any manner other than the manner expressly specified. What
was emphasised was that the provisions of the Code of Civil Procedure were enacted in
the year 1908 and in view of technological and other scientific developments which
have taken place after enactment of the Code, the phrase "unless the Court otherwise
directs" should be construed liberally to include direction to serve the
opponent/respondent directly. Explaining the purpose of direct service, it was pointed
out that in a given case, the Court may issue notice to the respondent/opponent
without giving any interim relief to the petitioner/appellant and may wish to hear the
party likely to be affected or the purpose may also be that a Court wants to hear the
other side before making an order, but wants to make its order urgently, and in such
circumstances, if restricted meaning is given to the phrase "unless the Court otherwise
directs" appearing in Sub-rule (1) of Rule 9 of Order 5, it would not serve the interest
of justice. According to Shri S. B. Vakil, learned senior Advocate, it is not correct to
say that the only recognised modes of service are : (1) personal service by an officer
of the Court, (2) service by post, (3) service by affixing and (4) substituted service as
opined by the learned single Judge and the phrase "unless the Court otherwise directs"
being of wide amplitude, any mode of service which is directed by the Court would be
a recognised mode of service. It was pleaded that the words "proper officer" employed
in Sub-rule (1) of Rule 9 of Order 5 C.P.C. would also include an Advocate practising
in the Court because for all practical purposes, an Advocate appearing in the Court is
an officer of the Court, and therefore, the Court can always permit the learned
Advocate appearing for a litigant to effect direct service on the opponent/respondent.
While dealing with the power of the Registrar to permit direct service on the
opponent/respondent, Shri S. B. Vakil, learned Senior Advocate submitted that Rule 12
of the Rules empowers the Registrar to dispose of matters enumerated therein,
whereas Clause (e) of the said Rule specifically provides that the Registrar is
competent to dispose of applications for issue of a fresh notice or ordering a particular
method of service of notice on a respondent, which would include method of service of
notice on a respondent directly, and therefore, it would not be correct to hold that the
Registrar has no power to order service of notice on a respondent directly. It was
stressed that the powers conferred on the Registrar to dispose of the matters
enumerated in Rule 12 of the Rules are judicial in nature against which a revision is

16-06-2020 (Page 3 of 10) www.manupatra.com Nirma University

 maintainable as provided in Rule 17 of the Rules, and therefore, power to order a
particular method of service of notice on a respondent having not been fettered in any
manner, it should be held that the Registrar has no power to order service of notice on
a respondent directly. According to Shri Vakil, learned Senior Advocate, normally the
summons should be delivered or sent to the proper officer to be served by him or one
of his subordinates on the defendant or his agent, but the phrase "unless the Court
otherwise directs" being of wide amplitude, the Court can direct that a litigant or his
recognised agent or the recognised clerk of the Advocate, who is not the proper
officer, can serve the summons on the opponent/respondent directly, and therefore,
the litigant or his recognised agent or the recognised clerk of the Advocate would also
be entitled to effectuate service on the opponent/ respondent when appropriate
direction is given either by the Court or by the Registrar. The learned Counsel
contended that Rule 455 of the Rules deals with certain situations when a recognised
clerk of an Advocate can act on behalf of his master's client and states that a
recognised clerk may act on behalf of his master's client in all matters of formal nature
which do not require the personal attendance of an Advocate and service of notice on
the opponent/ respondent being a ministerial act can be performed by a recognised
clerk on behalf of his master's client because for effectuating service on the opponent/
respondent, personal attendance of an Advocate is not required at all. In support of his
submissions, the learned Counsel representing Gujarat High Court Advocates'
Association, has drawn attention of the Court to the two reported decisions i.e. (i)
Poshetty and Ors. v. State of A. P. MANU/SC/1714/1996 : 1996 (11) SCC 213, and (ii)
Lilavati Gulabchand Amichand v. Municipal Corporation of Greater Bombay, 1966 BLR
868.
5. Shri S. N. Shelat, learned Advocate-General, stressed before the Court that in view
of the provisions of Order 5, Rule 9, there is no manner of doubt that direct service by
a litigant or his recognised agent or by an Advocate or by a recognised clerk of the
Advocate, is permissible, and therefore, the reference should be answered accordingly.
Further, the learned Advocate General emphasised that direct service of summons on
the opponent/respondent is a well recognised practice commonly adopted in the
Courts since years and as it is a time-honoured practice, the Court should answer the
reference by holding that direct service by a litigant or by his recognised agent or by
an Advocate or by a recognised clerk of an Advocate or any other person, who is not
an officer -of the Court, is a recognised mode of service. It was contended that while
construing the provisions of Order 5, Rule 9 Sub-rule (1), the Court should adopt a
construction that continuously updates its wording to allow for changes, since the
Code was initially framed and the construction which may be placed by the Court
should be such that in its application on any date, the language of the Code, though
necessarily embedded in its own time, is nevertheless is construed in accordance with
the need to treat it as current law and applying this principle of construction, the Court
should hold that direct service by an Advocate or a litigant or a recognised clerk of the
Advocate is a recognised mode of service. To persuade the Court to adopt this
principle of construction of statute, the learned Advocate General has drawn the
attention of the Court to the decision in Sil Import v. Exim Aids Silk Exporters 1999
(97) Comp. Cas 575. The learned Advocate General explained that if the Court does
not permit direct service, but has not refused direct service specifically, the Registrar
in exercise of powers conferred on him by Rule 12(e) of the Rules can permit service
of summons on a respondent directly, but the Registrar would not be entitled to do so
when direct service is specifically refused by the Court. In order to check certain
drawbacks, which are inherent when direct service is permitted, the learned Advocate-
General suggested that the direct service should be permitted to the named person i.e.
recognised clerk of an Advocate and that the recognised clerk of an Advocate would
not be entitled to further delegate the function of serving summons on the
opponent/respondent to any other person and service effected on the

16-06-2020 (Page 4 of 10) www.manupatra.com Nirma University

 opponent/respondent pursuant to such invalid delegation should not be treated as
good service by the Court. Shri Paresh Upadhyaya, learned Counsel representing the
Registrar, Gujarat High Court has emphatically asserted before the Court that the
Registrar of the High Court has power to order service of notice on a respondent
directly, which is quite manifest from the provisions of Rule 12(e) of the Rules, and
therefore, the reference should be answered accordingly.
6. We have considered the submissions advanced at the Bar and the provisions of law.
Order 5 of the Code of Civil Procedure, 1908 deals with issue and service of summons.
Rule 9 of Order 5, which is relevant for answering the issues raised in the reference,
reads as under :-
"9. Delivery or transmission of summons for service :- (1) Where the
defendant resides within the jurisdiction of the Court in which the suit is
instituted or has an agent resident within that jurisdiction who is empowered
to accept the service of the summons, the summons shall, unless the Court
otherwise directs, be delivered or sent to the proper officer to be served by
him or one of his subordinates.
(2) The proper officer may be an officer of a Court other than that in which
the suit is instituted, and where he is such an officer, the summons may be
sent to him by post or in such other manner as the Court may direct."
7. On analysis of Sub-rule (1) of Rule 9, which is quoted above, it becomes clear that
where the defendant resides within the jurisdiction of the Court in which the suit is
instituted or has an agent resident within that jurisdiction, who is empowered to
accept the service of the summons, the summons shall, unless the Court otherwise
directs, be delivered or sent to the proper officer to be served by him or one of his
subordinates. It means that the Court can direct that the summons need not be
delivered or sent to the proper officer to be served by him or one of his subordinates,
on the defendant and should be served in a manner by a person as may be directed by
the Court. It is relevant to notice that the provisions of Order 5, Rule 9 C.P.C. would
be applicable not only in the case of service of the summons in a suit, but would be
applicable to other proceedings, such as First Appeal, Second Appeal, Revision etc.,
and therefore, the provisions of Order 5, Rule 9 will have to be interpreted in a broad
manner. The Reference proceeds on the footing that the only recognised modes of
service are : (i) personal service by an officer of the Court, (ii) service by post, (Hi)
service by affixing, and (iv) substituted service. Because C.P.C. specifically mentions
four modes of service, it would not mean that the mode of service "otherwise directed"
by a Court provided under Order 5, Rule 9(1) is not a mode of service recognised by
C.P.C. On analysis of the provisions of law, we find that there may be other modes of
service also, such as, service by Courier or service by Fax message or service by
Electronic Mail service or service by litigant directly etc. and there is nothing either in
the provisions of the Code or the Rules by which it can be said that other modes of
service are excluded or prohibited. The phrase "unless the Court otherwise directs"
employed by the Legislature is of wide amplitude and any mode of service, which is
considered to be proper by the Court, would become a recognised mode of service. In
Sil Import (supra), it was noticed by the Supreme Court that under Clause (b) of
Section 138 of the Negotiable Instruments Act, 1881, a duty is cast on the Payee to
make a demand for payment within 15 days on receipt of information regarding the
return of the cheque unpaid by giving notice in writing to the drawer of the cheque.
Nowhere is it said that such notice must be sent by registered post or that it should be
despatched through a messenger. In that case, notice was sent by Fax and had
reached the drawer of the cheque within the period of 15 days. The question
considered by the Supreme Court was whether the despatch of notice through Fax was

16-06-2020 (Page 5 of 10) www.manupatra.com Nirma University

 proper or not. On review of law, the Supreme Court has held that if the notice
envisaged in Clause (b) of the proviso to Section 138 is transmitted by Fax, it would
be compliance with the legal requirement. While adopting this construction, what is
highlighted by the Supreme Court is that the Parliament intends the Court to apply to
an ongoing Act a construction that continuously updates its wording to allow for
changes since the Act was initially framed, meaning thereby that in its application on
any date, the language of the Act, though necessarily embedded in its own time, is
nevertheless to be construed in accordance with the need to treat it as current law.
Applying the rule of construction as suggested by the Supreme Court, we find that
there is no express provision in Order 5, Rule 9 C.P.C. which prohibits a Court from
giving direction to serve the other side by direct service and the phrase "unless the
Court otherwise directs" being of wide amplitude, would take within its sweep the
power of the Court to direct service of summons on the
defendant/opponent/respondent directly either by the litigant or his recognised agent
or his Advocate or a recognised clerk of the Advocate also. Further, we find that
service of summons on the defendant/ opponent/respondent is a well recognised mode
of service as well as time-honoured practice, and therefore, it would not be correct to
hold that direct service being not a recognised mode of service, is either illegal or
prohibited by law. At this stage it would be advantageous to refer to a decision of the
Division Bench of this Court in Suo Motu v. A. N. Patel MANU/GJ/0298/1996 : 1999
(1) GLR 8. Therein, the learned Advocate for the petitioners had taken, direct service
in a petition which was instituted under Article 226 of the Constitution. The clerk of
the learned Advocate had filed affidavits stating that the respondent Nos. 1, 2 & 3
were served. On the basis of those affidavits, the learned A.G.P. had proceeded on the
footing that the respondents were duly served in accordance with law and requested
the Court to grant some time so as to enable him to have instructions in the matter.
On the adjourned date, none had appeared on behalf of the respondent Nos. 1 & 2, but
a statement was made by the learned Advocate for the petitioners that the respondent
Nos. 1 & 2 were served and in view of the said statement, the Court had directed the
parties to maintain status quo. As no instructions were received in the matter, the
learned A.G.P. had requested for time and the Court while granting time, had directed
the learned A.G.P. to inform the respondent Nos. 1 & 2 about the order passed by the
Court as well as the inaction on the part of the concerned respondents. The learned
A.G.P. had accordingly addressed letters on November 23, 1995. On the subsequent
date to which the petition was adjourned, it was found by the Court that the concerned
respondents were not duly served. Thereupon, the proceedings for contempt of Court
were initiated. While dealing with the matter, the Division Bench has emphasised that
the vague affidavit of service of notice filed by the recognised clerk of the Advocate
should not be accepted by the office and has also suggested formats for (i) affidavit of
service and (ii) affidavit of refusal of service. If the Division Bench had not accepted
the direct service as one of the recognised modes of service of summons on the
opponent/ respondent, it would not have prescribed formats for affidavit of service or
affidavit of refusal of service. Thus, we are of the opinion that direct service on the
opponent/respondent is also recognised by the Division Bench as one of the
recognised modes of service and this Court cannot proceed on the footing that the
questions referred to us were not considered by the Division Bench, and therefore,
direct service was not recognised by the Division Bench as a valid service.
8. It is relevant to notice that Chapter 17 of the Gujarat High Court Rules, 1993 deals
with applications under Articles 226 227 & 228 of the Constitution and makes
provisions regarding rules for issue of writs and orders under the said Articles. Rule
181 of the Rules, which is relevant for the inquiry on hand, provides that the service of
the Rule Nisi or the Notice of the application for return shall along with the orders as
to interim relief be effected on the respondent in the manner prescribed in Order 5 of
C.P.C. for the service of summons upon a defendant in a suit and, therefore, the

16-06-2020 (Page 6 of 10) www.manupatra.com Nirma University

 provisions of Order 5 of C.P.C. as construed by us would be applicable when a direct
service is to be effected either by the litigant or his recognised agent or his lawyer or
the recognised clerk of the lawyer in a petition filed under Article 226 of the
Constitution. Therefore, on review of the provisions of law, we hold that it is not
correct to say that the only recognised modes of service are : (i) personal service by
an officer of the Court, (ii) service by post, (iii) service by affixing and (iv) the
substituted service, but the recognised modes of service would be any mode including
direct service which is permitted by the Court having regard to the facts of the case.
9 . The next issue which falls for our consideration is whether the Registrar, Gujarat
High Court has power to permit either a litigant, or his recognised agent or his learned
Advocate or the recognised clerk of the Advocate to effect service of notice on the
respondent directly. In this regard, we find that Chapter-11 of the Gujarat High Court
Rules, 1993 deals with powers of the Registrar, Deputy Registrar and Assistant
Registrar. Rule 12 of the Rules specifies the matters which can be disposed of by the
Registrar, in addition to the powers conferred upon him by other rules and subject to
such limitations as may be prescribed therein. There is no manner of doubt that when
the Registrar disposes of any of the matters enumerated in Rule 12 of the Rules, he
exercises judicial powers. Rule 12(e) provides that the Registrar has powers to dispose
of applications for issue of a fresh notice or ordering a particular method of service of
notice on a respondent. Clause (e) of Rule 12 does not prescribe that service of notice
on a respondent can be permitted by the Registrar only by personal service through an
officer of the Court or service by post or service by affixing or the substituted service.
As the Court can permit direct service to be effectuated on the
defendant/opponent/respondent, so also the Registrar can order service of notice on
the respondent directly through the litigant or his recognised agent or his lawyer or a
recognised clerk of the lawyer. The view expressed by the learned single Judge that
Rule 12(e) read with Clause (b) of Rule 13 necessarily mean that direct service is not a
recognised mode of service and the Registrar is not empowered to order direct service,
does not commend itself to us. When it is provided in Rule 12(e) that the Registrar can
order a particular method of service of notice on a respondent, the exercise of power
need not be confined to service of notice either by an officer of a Court or by post or
by affixing or substituted service. Normally, the occasion for the Registrar to exercise
powers under Rule 12(e) would arise when the Court has not specifically denied the
direct service to the litigant. In a given case, order issuing notice to the opponent may
be silent as to whether direct service is permitted to the petitioner or not and in such
circumstances, on an application being moved by the concerned person, it would be
competent to the Registrar to permit the direct service. It is also very clear that when
the Court has specifically refused the direct service to the litigant, the Registrar will
have no occasion to exercise powers under Rule 12(e) of the Rules and permit the
direct service to a litigant because the Registrar, while disposing of matters
enumerated in Rule 12, virtually exercises powers of the Court for convenience of all.
10. While considering the question as to who would be entitled to effectuate the direct
service on the opponent/respondent, we find that an Advocate practising in a Court is
always regarded as an officer of the Court. Not only he owes a duty to his client, but
he is supposed to assist the Presiding Officer of the Court in arriving at a just
conclusion in a matter and responsible to the Court. Therefore, an Advocate being an
officer of the Court, would be entitled to effectuate direct service permitted by the
Court, on the opponent/respondent. Coming to the question whether direct service
permitted by the Court can be effectuated by the clerk of an Advocate, we find that
Rule 448 of the Rules defines the expression "recognised clerk" and as per the
meaning of expression "recognised clerk" provided in the said rule, the expression
"recognised clerk" means a clerk employed by an Advocate and permitted to have
access to the High Court and the Courts subordinate thereto in which his employer is

16-06-2020 (Page 7 of 10) www.manupatra.com Nirma University

 authorized to practice and to the offices attached thereto. For the purposes of getting a
clerk recognised by the Registrar, an application is required to be submitted by the
Advocate as contemplated by Rule 451 of the Rules. Further, qualifications for
recognition as a recognised clerk are laid down in Rule 452 of the Rules. Rule 454 of
the Rules provides that no clerk employed by an Advocate shall be allowed access to
any of the offices of the High Court, unless he is a recognised clerk. Rule 455 which is
relevant for the purposes of answering the issues referred to us reads as under :-
"455. When recognised clerk can act on behalf of Advocate : A recognised
clerk may act on behalf of his master's client in all matters of formal nature
which do not require the personal attendance of an Advocate."
A bare reading of Rule 455 makes it manifest that a recognised clerk is entitled to act
on behalf of his master's client in all matters of formal nature which do not require the
personal attendance of an Advocate. When the direct service is permitted by the Court
on the opponent/respondent, it cannot be said that for the purpose of effectuating the
direct service, the personal attendance of an Advocate is necessary. The service of
Notice or Rule Nisi issued by the Court on the opponent/ respondent is a ministerial
act and of formal nature, and therefore, a recognised clerk would be entitled to serve
the notice on the opponent/respondent on behalf of his master's client. However, this
does not mean that the recognised clerk, who is entitled to effectuate the direct service
on the opponent/respondent on behalf of his master's client, is entitled to hand over
packet of direct service to any other recognised clerk of another Advocate or person,
but must perform this act himself because delegation of performance of an act on
behalf of his master's client, is not contemplated by the Gujarat High Court Rules.
However, in view of the provisions of Rule 455 of the Rules, there is no manner of
doubt that a recognised clerk would be entitled to serve directly the Notice/Rule Nisi
issued by the Court on the opponent/ respondent while acting on behalf of his
master's client. Earlier, we have held that the Registrar has power to give permission
to serve directly the opponent/ respondent when the Court issues Notice or Rule Nisi,
and therefore, while making application, it must be specified in the application as to
who is seeking the permission to serve the opponent/respondent directly and the order
granting permission should also specify that a particular recognised clerk of particular
Advocate is permitted to serve directly on the opponent/respondent. This is necessary
because several instances have come up before the Court, wherein frauds regarding
direct service have been committed and if there is misconduct on the part of the
named recognised clerk, the Registrar would be entitled to take action against him as
permitted by the Rules, including removal of the recognised clerk which is
contemplated by Rule 457 of the Rules. The act of direct service on the
opponent/respondent is a ministerial act and this becomes quite evident from the
principle enunciated by the Supreme Court in Poshetty & Ors. (supra). In the said
case, the question which was considered by the Supreme Court was, whether the
person interested should be supplied with copy of award along with notice under the
provisions of the Land Acquisition Act, 1894. While holding that the person interested
is not required to be supplied with copy of award along with notice, what is laid down
by the Supreme Court is that service of notice is a ministerial act and the Act did not
intend to supply the copy of the award. Further, ministerial act can always be
delegated by an Advocate to his recognised clerk, which is quite evident from the
principle laid down in Lilavati Gulabchand Amichand (supra). Therefore, we hold that
when direct service is permitted by the Court, the same can be effectuated on the
opponent/ respondent by the recognised clerk of the Advocate.
11. So far as the litigant himself is concerned, he is always entitled to effectuate the
direct service on the opponent/respondent and the same can be entrusted by him to
his recognised agent also. Order 3 deals with recognised agents and pleaders. Rule 2

16-06-2020 (Page 8 of 10) www.manupatra.com Nirma University

 of Order 3 deals with recognised agents and so far as Gujarat is concerned, Rule 2 of
Order 3 reads as under :-
"2. Recognised agents : The recognised agents of parties by whom such
appearances, applications and acts may be made or done are -
(a) Person holding on behalf of such parties either (i) a general power
of attorney, or (ii) in the case of proceedings in the High Court of
Gujarat an Advocate, and in the case of proceedings in any district, an
Advocate or a pleader to whom a sanad for the district has been
issued, holding the requisite special power of attorney from parties
not resident within the local limits of the jurisdiction of the Court
within which limits the appearance, application or act is made or
done, authorising them or him to make and do such appearance,
applications and acts on behalf of such parties.
( b) Persons carrying on trade or business for and in the names of
parties not resident within the local limits of the jurisdiction of the
Court within which limits the appearance, application or act is made
or done, in matters connected with such trade or business only, where
no other agent is expressly authorised to make and do such
appearances, applications and acts."
A close scrutiny of the above quoted provisions makes it evident that a litigant can
appoint a recognised agent, who would be entitled to make appearances or
applications or do acts on behalf of the litigant. Therefore, when it is said that a
litigant is entitled to serve the Notice/Rule Nisi issued by the Court on the
opponent/respondent directly through his agent, it means that the agent must be a
recognised agent within the meaning of Rule 2 of Order 3 C.P.C. and those who are
not recognised agents, are not entitled to serve directly "on behalf of the litigant.
12. We further find that in Suo Motu v. A. N. Patel MANU/GJ/0298/1996 : 1999 (1)
GLR 8, the Division Bench of this Court has prescribed formats for (i) affidavit of
service and (it) affidavit of refusal of service and those formats must be complied with
strictly. It is clarified that when the Court has specifically refused direct service,
neither the learned Advocate, nor his recognised clerk, nor the litigant, nor his
recognised agent would be entitled to move the Registrar seeking permission to serve
the opponent/respondent directly and if such an application is filed, it will have to be
rejected by the Registrar.
13. On interpretation of Order 5, Rule 9 C.P.C., we have held that the Court can permit
direct service to be effectuated on the opponent/respondent when Notice/Rule Nisi is
issued by the Court and this is on the interpretation of the phrase "unless the Court
otherwise directs" appearing in Sub-rule (1) of Rule 9. Normally, direct service is
permitted to be effectuated on the opponent/ respondent when appropriate request is
made by the learned Counsel for the petitioner, but there may be cases wherein the
service through office is not effectuated on the opponent/respondent for various
reasons and if the Court feels that it is necessary to serve the Notice on the
opponent/respondent by direct service, the Court can always direct either the learned
Advocate appearing for the petitioner or the petitioner or the recognised agent of the
petitioner or the recognised clerk of the Advocate to effectuate direct service on the
opponent/ respondent.
1 4 . In view of the above discussion, we hold that the direct service on the
opponent/respondent of the Notice/Rule Nisi issued by the Court is also a recognised
mode of service over and above the other modes of service like personal service by an

16-06-2020 (Page 9 of 10) www.manupatra.com Nirma University

 officer of the Court, service by post, service by affixing, the substituted service etc. We
further hold that direct service of the Notice/ Rule Nisi by an Advocate or by a litigant
or by his recognised agent or by the recognised clerk of the Advocate is permissible.
We further hold that the Registrar, in exercise of powers conferred on him by Rule
12(e) of the Gujarat High Court Rules, 1993, has power to permit direct service either
by the learned Advocate or by the litigant or by the recognised agent of the litigant or
by the recognised clerk of the Advocate. When any of the above referred to persons
are permitted to effectuate the service of the Police/Rule Nisi issued by the Court, it is
not open to any of them to further delegate the act of serving the
opponent/respondent directly and that one who is so authorised must perform the said
act. We hold that the recognised clerk of an Advocate is entitled to effectuate direct
service on the opponent/respondent when direct service is permitted either by the
Court or by the Registrar. We also hold that in appropriate cases, the Court can direct
either the learned Advocate or his recognised clerk or the litigant or his recognised
agent to serve directly the opponent/respondent.
1 5 . Pursuant to notice issued by us, the learned Advocates have appeared in the
matter and have ably assisted the Court. We appreciate the valuable assistance
rendered by Shri S. B. Vakil, learned Senior Advocate, Shri S. N. Shelat, learned
Advocate-General, Shri A. D. Oza, learned Government Pleader and Shri Upadhyaya,
learned Advocate appearing for the Registrar.
The Reference stands answered accordingly.

© Manupatra Information Solutions Pvt. Ltd.

16-06-2020 (Page 10 of 10) www.manupatra.com Nirma University