[O.5 R.17 CPC] Service Of Summons Is Incomplete Without Affixing Signatures Of Witnesses Residing Nearby: Rajasthan High Court

The Rajasthan High Court has set aside the trial court's decision in an ex parte proceeding in which a suit for declaration and permanent injunction was allowed against the petitioner based on the fact that the service of summons was incomplete under Order 5, Rule 17, CPC.

Order 5, Rule 17, CPC provides for servicing summons in certain situations, by affixing a copy on some conspicuous part of the house where the noticee ordinarily resides or carries on business, with a report mentioning the name and address of the person by whom the house was identified and in whose presence the notice was affixed.

The bench of Justice Anoop Kumar Dhand held that service of summons by affixing notice at a house without verifying the address of the noticee by obtaining signatures of an independent witness could not be treated as complete.

“Process Server failed to secure the signature of witness, residing in the same vicinity, in the report of service of summons. It appears that on the basis of the aforesaid report of the Process Server, proceedings as well as ex-parte judgment and decree was passed against the petitioner…On the basis of such unverified report, the Trial Court treated the service as complete.”

A suit for declaration and permanent declaration was filed by the respondent against the petitioner, in which notices were issued to the petitioner under Order 5, Rule 17, CPC. However, the Service Provider did not obtain signatures of any witness who identified the house of the petitioner.

Subsequently, the Trial Court initiated ex parte proceedings, considering service of summons as complete and allowed the suit against the petitioner. An appeal was filed by the petitioner, which was rejected, followed by a second appeal, which was also rejected. Hence, a petition was filed before the Court.

After hearing the contentions, the Court opined that apart from affixing the notice on conspicuous areas of house, the Process Server was also supposed to obtain the signature of the witness who identified the house where the petitioner resided. In the absence of such signatures, based on an unverified report, the service of summons could not be complete.

“Process Server is also supposed to obtain signature of the witness, identifying the house where the defendant resides…the absence of verification of the address of a party, through a witness, the service of summon cannot be treated as complete. In the instant case, the summon cannot be treated as served and consequently, the ex-parte proceedings, against the petitioner, ought not to have been drawn by the Trial Court.”

Accordingly, the Court petition was dismissed.

Title: Ram Kishan v Ram Dai & Ors.

Citation: 2025 Live Law (Raj) 259

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