[Cites 4, Cited by 0]
Delhi High Court
Jagdev Yadav vs Lokesh Gupta & Ors on 15 December, 2025
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 15.12.2025
+ FAO 317/2023, CM APPL. 63178/2023, CM APPL. 68881/2025 &
CM APPL. 68880/2025
JAGDEV YADAV .....Appellant
Through: Mr. Sanjay Kumar, Mr. Manoj Kumar
Verma and Mr. Yudhister Sharma,
Advocates.
versus
LOKESH GUPTA & ORS. .....Respondents
Through: Ms. Neeraj Rathee and Mr. Rajeev
Saini, Advocates.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT (ORAL)
CHANDRASEKHARAN SUDHA, J.
1. This is an appeal under Order XLIII Rule 1 and Section
104 of the Code of Civil Procedure, 1908, filed by the defendant
no. 4 in Misc. Application No. 850/2022 on the file of ADJ-03,
Rohini Courts, North District, Delhi, aggrieved by the order dated
23.01.2023 by which his application for setting aside the ex parte
Signed By:KOMAL FAO 317/2023 Page 1
order dated 12.07.2022 was dismissed.
2. According to the appellant/defendant no. 4, he never
received summons in the case, and therefore, he was unaware of
the proceedings that had been initiated by respondent no.
1/plaintiff. It was also alleged that the other respondents, namely
defendant no. 1 and 2, who are his parents and his brother,
defendant no.3, were conniving against him as a result of which,
they also did not inform him about the proceedings. His non-
appearance before the Court was not deliberate and hence, the
petition for setting aside the ex parte decree.
3. The application was opposed by respondent no. 1/plaintiff
who contended that summons was, in fact, served on the defendant
no. 4 and therefore, there is no reason for setting aside the ex parte
order.
4. The trial court, after considering the materials on record
and after hearing both sides, dismissed the application, holding
Signed By:KOMAL FAO 317/2023 Page 2
that summons was, in fact, served on the appellant/defendant no. 4.
Aggrieved, the defendant no. 4 has come up in appeal.
5. It is submitted by the learned counsel for the appellant/
defendant no. 4 by referring to Order V Rule 17 CPC that even
assuming that the summons was refused to be accepted, affixture
as contemplated under said rule was mandatory. However, the
process server has not effected service by affixture, and therefore,
there is no proper service. In support of the argument, he relies on
the dictum in Madan vs. Ramvati Rameshvara 2020 Volume 1
Maharashtra Law General 951.
6. Per contra, it is submitted by the learned counsel for the
respondent no. 1/plaintiff that there is no infirmity in the order of
the trial court calling for an interference by this Court.
7. Heard both sides.
8. From the impugned order, it is seen that summons was
sent to the appellant/defendant no. 4 via post as well as through the
Signed By:KOMAL FAO 317/2023 Page 3
process server. The report of the process server shows that the
daughter of the appellant/defendant no. 4, who was present there,
refused to receive the summons. The appellant/defendant no. 4 has
no case that the said report of the process server is false or
fabricated. He also does not have a case that the address shown in
the summons is wrong. Official acts are presumed to have been
regularly performed as contemplated under Clause (e) of Section
114 of the Evidence Act, 1872. Even assuming for a moment that
the summons was not properly served, it is seen from the
impugned order that summons issued through posts was also
attempted to be served on the appellant/defendant no. 4. However,
the same returned with an endorsement by the postal official
concerned that it was refused. The appellant/defendant no. 4 has no
case that the postal address shown is wrong or that the
endorsement made by the postal official concerned is incorrect or
false. In such circumstances, the service is presumed to have been
Signed By:KOMAL FAO 317/2023 Page 4
effected unless a different intention is shown to appear. (Section
27 of the General Clauses Act, 1897). No such different intention
has been shown.
9. In the aforesaid circumstances, I find that the allegation of
the appellant/defendant no. 4 that summons was never served on
him is apparently incorrect. I do not find any infirmity in the order
of the trial court calling for an interference by this Court.
10 The appeal is dismissed. Application(s), if any pending,
shall stand closed.
11. The date before the Joint Registrar on 13.02.2026 shall
stand cancelled.
CHANDRASEKHARAN SUDHA
(JUDGE)
DECEMBER 15, 2025
mj
Signed By:KOMAL FAO 317/2023 Page 5
