Madhya Pradesh High Court
Hindustan Express Morena Registered ... vs M/S Richa Agency Ganjiwala Mohalla ... on 30 October, 2025
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:27535
1 MP-5654-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 30th OF OCTOBER, 2025
MISC. PETITION No. 5654 of 2024
HINDUSTAN EXPRESS MORENA REGISTERED OFFICE AT
RADHIKA PALACE PITAMBARA ROAD INFRONT OF SHUKLA
HOTEL
Versus
M/S RICHA AGENCY GANJIWALA MOHALLA LAKKADKHANA
LASHKAR GWLAIOR THROUGH PROPRIETOR SMT. GEETA GUPTA
AND OTHERS
Appearance:
Shri Harish Kumar Dixit, Senior Advocate assisted by Ms.
Aakanksha- Advocate for petitioner.
Shri Ashish Shrivastava- Advocate for respondent No.1.
ORDER
The present Miscellaneous Petition under Article 227 of the
Constitution of India has been filed by the petitioner taking exception to the
order dated 26th September, 2024 passed by the 14th Additional District
Judge, Gwalior (First Appellate Court) in Misc. Civil Appeal No. 75 of
2024, affirming the order dated 20th February, 2024 passed by the Third
Civil Judge, Junior Division, Gwalior in MJC No. 146 of 2017, whereby the
application filed by the petitioner under Order IX Rule 13 CPC, along with
an application for condonation of delay, seeking to set aside the ex parte
judgment and decree dated 18.02.2016, was rejected.
2. The facts giving rise to the present petition, in brief, are that
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respondent No.1/plaintiff filed a civil suit against the petitioner alleging that
it is a registered firm dealing in printing materials and had sold printing
materials worth Rs.1,71,320/- to the petitioner vide Bill No. 253, duly signed
by the petitioner's employee. It was further pleaded that an additional
amount of Rs.5,400/- was also due, but despite issuance of a demand notice,
the petitioner failed to make payment, compelling the respondent to institute
a suit for recovery. Notices issued by the Trial Court through registered post
were returned with an endorsement stating that "no one came to receive the
notice in the post office." Consequently, the Trial Court directed that service
be effected by way of affixation (Chaspa) and, thereafter, through paper
publication under Order V Rule 20 CPC. The Trial Court proceeded ex parte
on 10.08.2015 and passed an ex parte decree on 18.02.2016 in Civil Suit No.
4-B of 2014. The petitioner thereafter filed an application under Order IX
Rule 13 read with Section 151 CPC, along with an application for
condonation of delay, which was dismissed by the Trial Court on
20.02.2024. The Appellate Court, vide order dated 26.09.2024, affirmed the
said order. Hence, this petition.
3. It is contended on behalf of the petitioner that the impugned orders
passed by both the Courts below are illegal, arbitrary, and contrary to the
settled principles of law. The petitioner specifically pleaded non-receipt of
notice through registered post and complete lack of knowledge regarding any
publication in a newspaper. The Courts below, however, proceeded on mere
presumptions while holding that service stood effected in law. It is submitted
that the endorsement of the postman--"not found at the time of delivery,
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informed, did not come to collect, time completed"--is self-contradictory.
When no one was found available, the question of "informing" the addressee
does not arise. Further, the plaintiff did not examine the postman, who alone
could have clarified whether such information was indeed given.
4. It is urged that both Courts failed to appreciate the mandatory
provisions of Order V Rules 17 and 19 CPC, which require that when
summons are returned unserved, the process server must file an affidavit and,
if necessary, be examined on oath before the Court declares service to be
complete. The Trial Court failed to conduct such an enquiry and, without
verifying actual service, proceeded ex parte. It is submitted that the petitioner
was deprived of an opportunity to contest the case on merits and that the
provisions of Order IX Rule 13 CPC should have been liberally construed in
the interest of justice. Reliance is placed on the judgments of M/s. Indore
Holding Pvt. Ltd. & Others vs. Chimanlal & Others (Misc. Appeal No.
2911/2010, decided on 25.01.2019, MPHC Indore Bench) and Satish
Construction Company vs. Allahabad Bank, AIR 1999 MP 21.
5. On the other hand, learned counsel for respondent No.1 opposed the
petition by relying on the judgment of State of M.P. vs. Hiralal and Others
[(1996) 7 SCC 523], contending that the petitioner was duly informed of the
proceedings and that the plea of ignorance is untenable. It is submitted that
the registered notice and publication in a widely circulated daily newspaper
(Dainik Bhaskar, Gwalior edition) constitute due service in the eyes of law.
The respondent further contended that the petitioner was fully aware of the
proceedings but deliberately chose to remain absent. Hence, it was prayed
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that the petition be dismissed.
6. Heard learned counsel for the parties and perused the impugned
orders as well as the documents available on record.
7. Upon perusal of the record of Civil Suit No. 4-B/2014, it is evident
that initially, the Trial Court issued notice for service of defendant-
petitioner, and on 09.03.2015, the Trial Court found that it was not clear
from the record whether the defendant was properly served through
registered post. The Court, therefore, directed the plaintiff to pay the process
fee so that notice could be served on the defendant through affixation
(Chaspa) as well as by ordinary mode. However, the service report of the
defendant was not returned either served or unserved. On 26.06.2015, the
Trial Court, on the request of the plaintiff, allowed an application under
Order V Rule 20 CPC for substituted service through paper publication.
8. Order V Rule 20 CPC reads as under:
"20. Substituted service.--(1) Where the Court is satisfied that
there is reason to believe that the defendant is keeping out of the
way for the purpose of avoiding service, or that for any other
reason the summons cannot be served in the ordinary way, the
Court shall order the summons to be served by affixing a copy
thereof in some conspicuous place in the Court-house, and also
upon some conspicuous part of the house (if any) in which the
defendant is known to have last resided or carried on business or
personally worked for gain, or in such other manner as the Court
thinks fit.
(1A) Where the Court acting under sub-rule (1) orders service by
an advertisement in a newspaper, the newspaper shall be a daily
newspaper circulating in the locality in which the defendant is last
known to have actually and voluntarily resided, carried on
business, or personally worked for gain.
(2) Effect of substituted service.--Service substituted by order of
the Court shall be as effectual as if it had been made on the
defendant personally.
(3) Where service substituted, time for appearance to be fixed.--
Where service is substituted by order of the Court, the Court shall
fix such time for the appearance of the defendant as the case may
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require."
9 . From bare perusal of aforesaid provisions, it is found that Court's
satisfaction is a necessary prerequisite for ordering substituted service under
Order 5 Rule 20 of the Code of Civil Procedure (CPC). The Court must first
be satisfied that the defendant cannot be served in the ordinary way, either
because he/she is avoiding service or for some other sufficient reason. This
satisfaction is based on material placed before the Court and is a mandatory
step before the Court can resort to methods like affixing the summons on a
conspicuous place or advertising in a newspaper.
10. On perusal of the order-sheet dated 26.06.2015, it is clear that no
reason was assigned by the Trial Court as to why the defendant should be
served through substituted service by paper publication. The reason recorded
by the Trial Court was not found satisfactory. Both the Trial Court and the
lower Appellate Court erred in holding that service of the defendant by
registered post was proper in the eyes of law. In fact, the Trial Court itself
had earlier found on 09.03.2015 that service by registered post was not
proper. Thus, the presumption drawn by the Trial Court that service had been
duly effected against the defendant and proceeded ex parte, without
compliance with procedural safeguards, amounts to material irregularity.
11. This Court finds substance in the petitioner's contention that the
postal endorsement was self-contradictory. It is well settled that an ex parte
decree passed without proper service of summons is liable to be set aside.
The first Appellate Court, while affirming the order of the Trial Court,
merely reproduced the provisions of Order IX Rule 13 CPC without
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independently analyzing the factual discrepancies regarding service, thereby
failing to exercise its jurisdiction properly.
12. In view of the foregoing discussion, this Court holds that both the
Trial Court and First Appellate Court acted with material irregularity and
illegality in the exercise of jurisdiction by rejecting the petitioner's
application under Order IX Rule 13 CPC.
13. Accordingly, the orders dated 20.02.2024 passed by the Third Civil
Judge, Junior Division, Gwalior in MJC No. 146/2017 and dated 26.09.2024
passed by the 14th Additional District Judge, Gwalior in Misc. Civil Appeal
No.75/2024 are hereby quashed. The ex parte judgment and decree dated
18.02.2016 passed in Civil Suit No. 4-B/2014 are also set aside. The matter
is remanded to the Trial Court for affording an opportunity to the petitioner
to file a written statement and contest the suit on merits.The case is of 2014.
So, the Trial Court is expected to decide it as expeditiously as possible. Both
the parties are directed to remain present before the Trial Court concerned on
14-11-2025.
14. The petition stands allowed and disposed of in the aforesaid terms.
No order as to costs.
(HIRDESH)
JUDGE
MKB
