Rajasthan High Court - Jodhpur
Puran vs Neeru (2025:Rj-Jd:12205) on 4 March, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:12205]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 164/2025
Puran S/o Bhundaram, Aged About 33 Years, R/o Piplad, Teh.
Sojat, Dist. Pali,raj.
----Appellant
Versus
Neeru D/o Chandraram, R/o Panch Police K Pas, Meel K Piche,
Pali Teh. And Dist. Pali, Raj.
----Respondent
For Appellant(s) : Mr. Bharat Devasee
HON'BLE MS. JUSTICE REKHA BORANA
Order 04/03/2025
1. The present appeal has been filed against the order dated 16.10.2024 passed by the learned Additional District Judge, Sojat, District Pali in Civil Misc Case No.79/2023 (CIS No.79/2023) whereby the application under Order 9 Rule 13 read with Section 151, CPC as filed on behalf of the applicant-respondent has been allowed.
2. Vide the order impugned, the learned Trial Court specifically observed that the service which was deemed to be complete by the Court while directing to proceed ex-parte was infact not a proper service.
3. The Court observed that the first report dated 21.09.2021 of the process server was to the effect that the applicant was not residing with her mother. In that circumstance, the second report dated 28.09.2021 to the effect that she was residing with her mother cannot be termed to be correct.
4. Learned Trial Court further observed that even if the version of the process server that the applicant refused to accept the notice is correct, in that event, the affixation of notice in terms of (Downloaded on 21/03/2025 at 11:36:20 PM) [2025:RJ-JD:12205] (2 of 3) [CMA-164/2025] Order 5 Rule 17, CPC was essential which evidently had not been made in the present matter.
5. With the above observations, the learned Court proceeded on to allow the application.
6. Learned counsel for the appellant submits that the order impugned is erroneous as it is evident on the face of it that the service was complete on the applicant as she herself refused to accept the notice. He further submits that even the application under Order 9 Rule 13, CPC was time barred and could not have been entertained.
7. Heard the counsel and perused the material available on record.
8. Order 5 Rule 17, CPC provides as under:
"17. Procedure when defendant refuses to accept service, or cannot be found.--Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, [who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time], and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall 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, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating (Downloaded on 21/03/2025 at 11:36:20 PM) [2025:RJ-JD:12205] (3 of 3) [CMA-164/2025] that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."
9. In view of the above provision, when the notice was refused to be accepted by the applicant, it was the bounden duty of the process server to affix the notice in terms of Order 5 Rule 17, CPC. The same having not been done, the service cannot be termed to be proper. In the specific opinion of this Court, the observation as made by the learned Court is totally in consonance with law.
10. So far as the delay in filing the application under Order 9 Rule 13, CPC is concerned, as per the version of the applicant, she came to know about judgment dated 30.03.2022 on 04.04.2023 and the present application was filed on 11.08.2023 after receipt of the certified copy on 05.08.2023. The learned Trial Court while passing the order impugned observed the said facts and found the application to be within time limit. In the specific opinion of this Court, the learned Trial Court rightly exercised its jurisdiction.
11. In view of the above observations, no case for interference is made out and the present appeal is hence, dismissed.
12. Stay petition and pending applications, if any, stand disposed of.
(REKHA BORANA),J 17-Devanshi/-
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