Ex-Parte Decree Can’t Be Set Aside For Mere Irregularity In Serving Summons If Party Had Enough Time To Contest It: Himachal Pradesh High Court
The Himachal Pradesh Excessive Courtroom has put aside a Trial Courtroom order which put aside an ex-parte decree, whereas holding that an ex parte decree cannot be put aside merely on the bottom of irregularity in service of summons whether it is established that the opposite celebration had discover of the listening to date and adequate time to contest the declare.
Justice Satyen Vaidya stated: “The second proviso appended to Rule 13 of Order 9 of the Code carves out an exception that no Courtroom shall set-aside a decree handed ex parte merely on the bottom that there was an irregularity within the service of summons, whether it is happy that the defendant had discover of the date of listening to and had adequate time to seem and reply the plaintiff’s declare.”
Background Information:
The petitioner, Devi Dass, filed a civil swimsuit for restoration of Rs.20,00,000/- . Nevertheless, regardless of repeated summons, through the proceedings of the civil swimsuit, the respondents didn’t seem and had been finally proceeded in opposition to ex parte. Thereafter, an ex parte decree was handed in favour of the petitioner.
After this, the respondents filed an software beneath Order 9 Rule 13 of the Code of Civil Process and Part 5 of the Limitation Act, claiming that they had been by no means served and solely received to know in regards to the case after they obtained discover of execution proceedings.
The contentions of the respondent had been accepted by the trial court docket, and his software was allowed. Subsequently, the ex parte decree was put aside.
Aggrieved by the Trial Courtroom’s Resolution, the Petitioner approached the Excessive Courtroom.
Findings:
The Excessive Courtroom noticed that the Trial Courtroom held that the respondents weren’t served correctly as a result of the method server didn’t file any affidavit relating to affixation of summons beneath Order 5 Rule 17 of the Civil Process Code. Nevertheless, in one other order, the Trial Courtroom recorded that the method server duly served the summons. Noting this, the Courtroom remarked that the findings of the Trial Courtroom had been contradictory.
The Courtroom noticed from the petitioner’s proof that the method server made two makes an attempt to serve the summons. On the second try, he affixed the summons on the principle gate of the corporate’s workplace within the presence of an worker, who refused to signal as a witness.
It acknowledged that beneath Order 5 Rule 17 of the Code, a summons is allowed to be served by affixation when, after utilizing all due and affordable diligence, the defendant just isn’t discovered. Additional, as per Order 5 Rule 19, when summons are served by affixation, the Courtroom should be certain that this was accomplished correctly by inspecting the method server on oath, until the server has already filed a sworn assertion.
On this case, the Courtroom held that the requirement of Rule 17 stood happy. Nevertheless, the Trial Courtroom discovered the service invalid as a result of Rule 19 was not adopted.
The Excessive Courtroom held that this discovering of Trial Courtroom cannot be sustained given that the Courtroom is remitted to look at the serving officer on oath and to carry additional inquiries within the matter because it thinks match, in case the place the returned summons haven’t been verified by the affidavit of the serving officer.
Since within the current case, the report of the serving officer was verified, it was not necessary for the Courtroom to have examined the serving officer or to carry some other additional inquiry. The absence at most could be construed as an irregularity, the court docket stated.
Subsequently, the Courtroom reiterated that beneath Order 9 Rule 13, an ex parte decree could also be put aside whether it is proved that the summons was not duly served, or that the defendant was prevented by adequate trigger when the swimsuit was known as for listening to. On this case, the defendants have taken each these pleas, claiming the summons was not duly served they usually had no information in regards to the swimsuit.
Nevertheless, the exception to Rule 13 says that no Courtroom shall put aside a decree handed ex parte merely on the bottom of irregularity within the service of summons, whether it is happy that the alternative celebration had discover of the date of listening to and adequate time to seem and reply the plaintiff’s declare.
The Courtroom concluded that the summons was correctly served, or alternatively, it may be stated that it was a case of mere irregularity within the service of the summons. The method server tried to contain firm staff as witnesses, however they refused. So, after two tries, he caught the summons on the workplace gate.
Rule 2 (b) of Order 29 offers that the place the swimsuit is in opposition to an organization, the summons could also be served by leaving it or sending it by submit to the Company on the registered workplace or if there is no such thing as a registered workplace, then on the place the place the Company carries on enterprise.
Subsequently, the court docket held that the summons was rightly served, because the summons and replica of the swimsuit had been put up on the corporate’s fundamental gate.
Case Title: Devi Dass v/s M/s Ginni World Pvt. Ltd. & one other
Case No.: CMPMO No. 305 of 2022
Date of Resolution: 01.07.2025
For the Petitioner: Mr. Sanjeev Bhushan, Senior Advocate with Mr. Sparsh Bhushan, Advocate.
For the Respondents: Mr. Vikas Chauhan, Advocate
