Several courts around the country are experimenting the usage of technology and in judicial proceedings especially while serving of official documents. In June 2018, the Delhi High court gave an order setting a milestone, “Double tick on WhatsApp is a clear proof of delivery of summons.”
The primary method of serving summons is by personal service, which suggests that somebody must physically deliver the summons document to the opposite person/party. There could also be certain restrictions depending upon the jurisdictions and whether the case is civil or criminal. The alternative method is to affix a replica of the summons on the outer door or another conspicuous part of the house during which the defendant ordinarily resides or carries on business or personally works for gain if the serving officer after due diligence isn’t ready to trace the person.
The Court shall also in addition to personal service direct the summons to be served by registered mail 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 aren’t served timely because of the reasons like shortage of manpower and more often due to the challenging task of dealing with people who avoid service of process. To address the prevailing bottlenecks and introduce reforms within the rules and procedures concerning process service, important legislative changes are introduced within the procedural laws.
Further, High Courts have also adopted practical steps to deal with the issues of delay caused due to process service by introducing changes in rules and policies. The Code of Civil Procedure, 1908 was amended in 2002 including electronic means of serving a summons in Rule 9 and 9A.
The Hon’ble Supreme Court of India within 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 could also be done through an E-mail, additionally to a normal mode of service.
The Courts have inducted the “electronic means” in their respective rules so as to hurry 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 in the value & effort that goes into serving notices to defendants, especially those who don’t want to be found.
However, the Courts have taken landmark judgements and added WhatsApp to the list of electronic means trying to tackle the matter. 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 during a partition suit be served via WhatsApp.
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 to one of the defendants through WhatsApp, text message & email, and to file an affidavit of service.
Around the same time, Rohini Civil Court in Delhi accepted the blue double-tick in WhatsApp message as valid proof that a case related notice had been seen by the message’s recipients. A man served the notice to 5 people including his son, daughter-in-law, her parents and her friends through WhatsApp in reference to a family dispute (trespass to property). He then took the colour 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 supported the proof that the Defendants had acquired the knowledge of the scheduled hearing.
The Delhi Metropolitan Court, allowed a complainant, the lady to serve summons to his husband in Australia through WhatsApp. In this case, the husband had left for Australia in the year 2015 for pursuing further studies leaving the complainant, a homemaker, and their minor daughter, who was two years old then. The complainant continued to remain in their rented accommodation in Noida but soon joined her parents in Delhi after the husband stopped paying rent for the house. After a couple of 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 didn’t make any efforts to meet her or their daughter. Therefore, the women filed a case of violence and also sought maintenance for his or her daughter and herself.
The advocate of the complainant requested the Court to serve the summons to the husband through WhatsApp. Following the 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 another matter and knew well that his summoning was urgent during this matter also. The documents submitted before the Court reveal that there’s “Double Tick” on the WhatsApp messages sent. The Court observed that this suggests that the copy of the summons has been delivered on the mobile number of the estranged husband.
In addition to the traditional methods of serving summons like that of ‘giving in-person,’ the Courts have now recognized WhatsApp as well for doing the same. The Courts have found a totally new purpose of WhatsApp. However, it’s essentially important to know that the electronic means, least of all WhatsApp, aren’t getting to replace the “regular models”. They are meant for those exceptional cases where the defendants are hiding and evading their appearance in Courts.