Rajasthan High Court - Jodhpur

Pitambar vs Bhoja Mal (2025:Rj-Jd:36518) on 14 August, 2025

[2025:RJ-JD:36518]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR



                     S.B. Civil Misc. Appeal No. 466/1995

Pitambar S/o Shri Kripal Das Maheshwari, resident of Post
Chuwa, District Khera, Gujarat.


                                                                        ----Appellant
                                        Versus


1. Legal representatives of Late Shri Bhoja Mal are as follows:-


1/1 Anand Ram S/o Late Shri Bhoja Mal,


1/2 Khushal Chand S/o Late Shri Bhoja Mal,


1/3 Jagdish S/o Late Shri Bhoja Mal,


1/4 Smt. Kaushalya D/o Late Shri Bhoja Mal W/o Narayan,


1/5 Smt. Rukhmani D/o Late Shri Bhoja Mal W/o Shyamal,


1/6 Smt. Kamla Devi D/o Late Shri Bhoja Mal W/o Vasudeo,


1/7 Jaman D/o Late Shri Bhoja Mal,


1/8 Jyoti D/o Late Shri Bhoja Mal, Residents of Naya Pura
Mohalla, Balotra.


2. Shanker Lal S/o Kirpal Das Maheshwari, resident of Barmer.


3. Teja Ram S/o Sallg Ram Choudhary, resident of Nokhara,
District Barmer.


4. Chola Ram S/o Sallg Ram Choudhary, resident of Nokhara,
District Barmer.


5. Anand Ram S/o Bhoja Mal Sindhi, resident of Balotra, District
Barmer.
                                                                     ----Respondents



                         (Downloaded on 18/08/2025 at 08:59:42 PM)
 [2025:RJ-JD:36518]                     (2 of 7)                    [CMA-466/1995]




For Appellant(s)            :     Mr. Prashant Tatia
                                  Mr. Manish Bhunwal
                                  Mr. Rajat Rajpurohit for
                                  Mr. Sajjan Singh
For Respondent(s)           :     Mr. D.L.R. Vyas



             HON'BLE MR. JUSTICE SANDEEP TANEJA

                                  JUDGMENT

14/08/2025

1. This appeal lays challenge to the order dated 04.08.1995

passed by the learned District Judge, Balotra (for short 'the Trial

Court') in Civil Misc. Case No.14/94, whereby the application filed

by appellant-defendant No.1 under Order 9 Rule 13 of the Code of

Civil Procedure (C.P.C.) seeking setting aside of preliminary decree

dated 31.05.1991 and final decree dated 06.01.1994 has been

rejected.

2. The brief facts of the case are that a suit for settlement of

accounts was filed by respondent No.1-plaintiff against the

defendants including the appellant. The appellant filed the written

statement in defence. However, thereafter due to non-appearance

of the appellant, the suit was decreed by ex-parte judgment and

decree dated 16.03.1995.

2.1. Aggrieved by the said judgment and decree, the appellant

filed a regular first appeal before the Hon'ble High Court and the

Hon'ble High Court vide order dated 19.09.1986 set aside the ex-

parte judgment and decree and remanded the matter to the

learned Trial Court.

2.2 After the remand of the matter by the Hon'ble High Court

and consequent restoration to its original number, the learned Trial

[2025:RJ-JD:36518] (3 of 7) [CMA-466/1995]

Court issued notice to the counsel for the appellant, who pleaded

"No Instructions". The learned Trial Court then issued fresh notices

to the appellant for 16.12.1986, 05.02.1987, 13.03.1987,

16.04.1987, 12.05.1987, 17.09.1987 and 12.11.1987. However,

the notices were received unserved with an endorsement that the

appellant did not live at the given address and he had gone to

Gujarat.

2.3 In these circumstances, the respondent No.1 filed an

application under Order 5 Rule 20 C.P.C. for service of summons

on the appellant by substituted service. The said application was

allowed and the summons was published in a newspaper i.e.

Simant Times on 09.12.1987. Since, the appellant did not appear,

the learned Trial Court proceeded ex-parte against the appellant

and passed the preliminary decree on 31.05.1991 and final decree

on 06.01.1994. The appellant filed an application under Order 9

Rule 13 C.P.C. for setting aside ex-parte judgment and decree,

which was dismissed by the learned Trial Court vide impugned

order dated 04.08.1995.

3. Learned counsel for the appellant submits that after the

matter was remanded by the Hon'ble High Court to the learned

Trial Court, the notices were not served upon the appellant.

Counsel further submits that the publication of summons in the

newspaper has also not been in accordance with the requirements

of Order 5 Rule 20 C.P.C. as the newspaper i.e. Simant Times is a

weekly newspaper and not a daily newspaper. Learned counsel,

therefore, submits that the learned Trial Court fell in error in

rejecting the application filed by the appellant seeking setting

[2025:RJ-JD:36518] (4 of 7) [CMA-466/1995]

aside of ex-parte decrees. Learned counsel for the appellant relies

upon the following judgments :

(i) Shaitan Singh Vs. UCO Bank reported in 2004(5) WLC

614.

(ii) Great Punjab Agro Industries Ltd. vs. Khushian & Ors.

reported in 2005 SCC Online SC 1285.

(iii) Abbu Bakar & Anr. Vs. Deen Dayal & Anr. reported in

2006(4) WLC 494.

(iv) Iqbal Kaur & Ors. Vs. Jagdish Prasad & Ors. reported in

2013 (2) WLC 494.

4. Per contra, learned counsel for the respondent No.1 while

supporting the impugned order passed by the learned Trial Court,

submits that the appellant was aware of pending proceedings

before the learned Trial Court as he himself had filed an appeal

before the Hon'ble High Court, by which the ex-parte judgment

and decree was set aside and, therefore, the appellant cannot be

permitted to put forward the ground of non-service of notices.

Counsel further submits that on the ground of technicalities and

irregularity in service of summons, ex-parte decree cannot be set

aside. Learned counsel for the respondents relies upon the

following judgments :

(i) Sunil Poddar & Ors. Vs. Union Bank of India reported in

2008 (1) WLC 410.

(ii) Navneet Shah Vs. Mool Chand & Anr. reported in 2025

(2) CJ (Civ.) (Raj.) 793.

[2025:RJ-JD:36518] (5 of 7) [CMA-466/1995]

(iii) M/s. Tirupati Fab Oils & Chemicals and Others Vs. Atul

Jain (DB Civil Misc. Appeal No.1852/2024 decided on

31.07.2025).

(iv) Raju Lal Teli Vs. Banshi Lal reported in 2023 (3) CJ

(Civ.) (Raj) 1784.

5. Heard learned counsels for the parties and perused the

record.

6. In this case, the service of summons on the appellant has

been effected by way of substituted service and the case of the

appellant is that summons has not been published in consonance

with the requirements of Order 5 Rule 20 C.P.C.

7. The relevant provision as contained under Order 5 Rule 20

C.P.C. reads as under :

"(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."

A bare perusal of the above provision reveals that where the

Court orders service by an advertisement in a newspaper, the

newspaper shall be a daily newspaper.

8. In the instant case, the summon was published in the

newspaper namely Simant Times, which is a weekly newspaper

and not a daily newspaper. The fact that Simant Times is a weekly

newspaper is not disputed by the counsel for the respondent No.1.

Thus there is a clear violation of mandatory requirement of law.

[2025:RJ-JD:36518] (6 of 7) [CMA-466/1995]

9. This court in the case of Shaitan Singh Vs. U.C.O. Bank

reported in 2004 (5) WLC 614, set aside the ex-parte decree

where the summons was published in a fortnightly newspaper. The

relevant paras of the said judgment are as under :

"8. Then coming to the question of special circumstances, without going into the other contentions, and factual aspect, suffice it to say that vide order dated 5.4.1991, the service of the petitioner was ordered to be effected by substituted service, and a look at the provisions of Or. 4 Rule CPC shows that according to sub-rule (1-A), 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. In the present case, summon has been published in the newspaper 'Janamdata' in its issue dated 1.5.1991, a copy whereof is available on record at page A49/1. A look at that paper shows that it is a fortnightly paper.

9. Thus, taking the things on the face of it, it is clear that summon has not been published in accordance with the requirements u/O. 5 Rule 20 CPC......"

10. The counsel for respondent No.1 has submitted that the

present is a case of irregularity in service. I do not find any force

in the said submission. Publication of summons in a newspaper

other than a daily newspaper is a violation of requirement of law

and therefore cannot be termed merely as an irregularity in the

service of summons.

Further the judgments cited by the counsel for the respondent

No.1 are also not applicable to the facts of the present case as

they primarily deal with knowledge of a party about the date of

hearing and/or with irregularity in service of summons.

[2025:RJ-JD:36518] (7 of 7) [CMA-466/1995]

11. In view of the above discussion, it is clear that the summons