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
[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
[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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