Recently, the Rajasthan High Court set aside an ex parte decree in a suit for declaration and permanent injunction, holding that in the absence of witness verification of a party’s address, service of summons cannot be treated as complete. The Court emphasised that a Process Server must obtain the signature of a witness identifying the defendant’s residence when summons are affixed in the defendant’s absence, failing which, such service is defective.
Brief Facts:
The suit for declaration and permanent injunction was filed by the Respondent herein against the Petitioner before the Assistant Collector, wherein after service, the Petitioner submitted a written statement. The suit was dismissed in default for the non appearance of the Respondent, however, it was restored. Thereafter, the suit was once again dismissed for non-payment of cost, but then the appeal was preferred by the Respondent and the matter was remanded back to the Assistant Collector to decide the suit on its merits.
The notice was issued to the Petitioner. However, the notices were allegedly affixed at a conspicuous place of his house. Furthermore, the ex parte proceedings were initiated, and the exparte judgment and decree were passed. Aggrieved by this, an appeal was filed before the RAA, and the same was rejected. Then, the Petitioner preferred a second appeal, and the same was also dismissed. Therefore, the present writ petition has been filed.
Contentions of the Petitioner:
Counsel for the Petitioner argued that the summons were improperly served in violation of Order 5 Rule 17 of the Code of Civil Procedure (CPC). The Process Server neither met the Petitioner nor obtained the signature of any local witness identifying the house. This, it was contended, rendered the service incomplete, making the ex parte proceedings unsustainable.
Contentions of the Respondent:
The Respondent’s counsel contended that the Petitioner’s appeal under Section 96(2) CPC before the RAA was not maintainable, as the ex parte judgment had not been challenged on merits. Reliance was placed on the decision in N. Mohan v. R. Madhu.
Observations of the Court:
The Court highlighted that when an ex parte decree is passed, the defendant has two remedies:
(a) Either to file an application under Order 9 Rule 13 CPC to set aside the ex-parte decree by satisfying the court that the summons was not served or if served, the defendant was prevented by “sufficient cause” from appearing in the court when the suit was called for hearing;
(b) to file a regular appeal from the original decree to the first appellate court in terms of Section 96(2) CPC and challenge the ex-parte decree on merits.
The Court furthermore observed that right to file an appeal under Section 96(2) CPC is a statutory remedy. The right to appeal is not a mere matter of procedure; but is a substantive right. Right to appeal under Section 96(2) CPC challenging the original decree passed ex-parte, being a statutory right, the defendant cannot be deprived of the statutory right merely on the ground that he did not file any application under Order 9 Rule 13 CPC.
The Court noted that the petitioner was not found at his residence, therefore, the notices were affixed at a conspicuous place of his house and it is not a case where the Petitioner refused to accept the notices.
The Court furthermore noted that “Order 5 Rule 17 CPC deals with such like situation when the defendant has refused to accept notice or cannot be found. It indicates that when the Process Server, in the absence of the defendant, affixes a copy of the summons on the outer door or at any conspicuous place of the house, where the defendant ordinarily resides or carries on business, he shall return the original notice to the Court with a report endorsed thereupon. However, the Process Server is also supposed to obtain signature of the witness, identifying the house where the defendant resides. In the absence of verification of the address of a party, through a witness, the service of summon cannot be treated as complete.”
In the instant case, the Process Server failed to secure the signature of witness, residing in the same vicinity, in the report of service of summons
Based on these considerations, the court was of the view that the summon cannot be treated as served and consequently, the ex-parte proceedings, against the petitioner, ought not to have been drawn by the Trial Court.
The decision of the Court:
Holding that the summons could not be treated as duly served, the High Court quashed all three impugned judgments and remitted the matter to the Assistant Collector. The trial court was directed to frame fresh issues and provide both parties an opportunity to lead evidence before deciding the case on merits.
Case Title: Ram Kishan V. Ram Dai
Coram: Justice Anoop Kumar Dhand
Case No: S.B. Civil Writ Petition No. 3789/2021
Advocates for the Petitioner: Adv. Dinesh Khandelwal, Gauri Meena
Advocates for the Respondent: Adv. Amit Kuri, Dharma Ram, Nandini Mirdha, Harshvardhan Shekhawat, Rajesh Kumar Bairwa, Aatish Jain
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