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 High Court has set aside a Trial Court order which set aside an ex-parte decree, while holding that an ex parte decree can't be set aside merely on the ground of irregularity in service of summons if it is established that the other party had notice of the hearing date and sufficient time to contest the claim.

Justice Satyen Vaidya said: “The second proviso appended to Rule 13 of Order 9 of the Code carves out an exception that no Court shall set-aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.”

Background Facts:

The petitioner, Devi Dass, filed a civil suit for recovery of Rs.20,00,000/- . However, despite repeated summons, during the proceedings of the civil suit, the respondents did not appear and were eventually proceeded against ex parte. Thereafter, an ex parte decree was passed in favour of the petitioner.

After this, the respondents filed an application under Order 9 Rule 13 of the Code of Civil Procedure and Section 5 of the Limitation Act, claiming that they were never served and only got to know about the case when they received notice of execution proceedings.

The contentions of the respondent were accepted by the trial court, and his application was allowed. Therefore, the ex parte decree was set aside.

Aggrieved by the Trial Court's Decision, the Petitioner approached the High Court.

Findings:

The High Court observed that the Trial Court held that the respondents were not served properly because the process server did not file any affidavit regarding affixation of summons under Order 5 Rule 17 of the Civil Procedure Code. However, in another order, the Trial Court recorded that the process server duly served the summons. Noting this, the Court remarked that the findings of the Trial Court were contradictory.

The Court observed from the petitioner's evidence that the process server made two attempts to serve the summons. On the second attempt, he affixed the summons on the main gate of the company's office in the presence of an employee, who refused to sign as a witness.

It stated that under Order 5 Rule 17 of the Code, a summons is allowed to be served by affixation when, after using all due and reasonable diligence, the defendant is not found. Further, as per Order 5 Rule 19, when summons are served by affixation, the Court must ensure that this was done properly by examining the process server on oath, unless the server has already filed a sworn statement.

In this case, the Court held that the requirement of Rule 17 stood satisfied. However, the Trial Court found the service invalid because Rule 19 was not followed.

The High Court held that this finding of Trial Court can't be sustained for the reason that the Court is mandated to examine the serving officer on oath and to hold further inquiries in the matter as it thinks fit, in case where the returned summons have not been verified by the affidavit of the serving officer.

Since in the present case, the report of the serving officer was verified, it was not mandatory for the Court to have examined the serving officer or to hold any other further inquiry. The absence at most can be construed as an irregularity, the court said.

Therefore, the Court reiterated that under Order 9 Rule 13, an ex parte decree may be set aside if it is proved that the summons was not duly served, or that the defendant was prevented by sufficient cause when the suit was called for hearing. In this case, the defendants have taken both these pleas, claiming the summons was not duly served and they had no knowledge about the suit.

However, the exception to Rule 13 says that no Court shall set aside a decree passed ex parte merely on the ground of irregularity in the service of summons, if it is satisfied that the opposite party had notice of the date of hearing and sufficient time to appear and answer the plaintiff's claim. 

The Court concluded that the summons was properly served, or alternatively, it can be said that it was a case of mere irregularity in the service of the summons. The process server tried to involve company employees as witnesses, but they refused. So, after two tries, he stuck the summons on the office gate. 

Rule 2 (b) of Order 29 provides that where the suit is against a company, the summons may be served by leaving it or sending it by post to the Corporation at the registered office or if there is no registered office, then at the place where the Corporation carries on business.

Therefore, the court held that the summons was rightly served, as the summons and copy of the suit were put up on the company's main gate.

Case Name: Devi Dass v/s M/s Ginni Global Pvt. Ltd. & another

Case No.: CMPMO No. 305 of 2022

Date of Decision: 01.07.2025

For the Petitioner: Mr. Sanjeev Bhushan, Senior Advocate with Mr. Sparsh Bhushan, Advocate.

For the Respondents: Mr. Vikas Chauhan, Advocate

Click Here To Read/Download Order