Case Note & Summary
This case involved a landlord-tenant dispute where the tenant, Sushil Kumar Sabharwal, challenged an ex-parte decree for recovery of rent and eviction. The decree was issued on 9.10.1993 after the tenant allegedly refused to accept summons served by the process server. The tenant filed an application under Order 9, Rule 13 of the Code of Civil Procedure (CPC) to set aside the decree, which was rejected by the Trial Court and the High Court. The Supreme Court examined the service of summons and found significant lapses by the process server, including a failure to properly affix the summons when refused. The court noted that the process server's endorsement contradicted his testimony, and there were no witnesses to verify the service. The tenant testified that he had not received any summons, leading to a situation of 'oath against oath.' The court emphasized the importance of proper service of summons and the right to be heard, stating that the Trial Court had erred in proceeding ex-parte without ensuring proper service. The Supreme Court ultimately allowed the appeal, set aside the ex-parte decree, and directed the Trial Court to proceed with the case, ensuring the tenant's right to contest the suit was upheld.
Headnote
A) Civil Procedure - Service of Summons - Proper Service Requirement - Code of Civil Procedure, 1908, Order 5, Rules 17 and 18 - The court found that the process server failed to properly serve the summons as required, leading to an ex-parte decree. The endorsement by the process server contradicted his testimony, and the court held that the tenant was not given a fair opportunity to contest the suit. The appeal was allowed, and the ex-parte decree was set aside (Paras 1-4).
Issue of Consideration
Whether the defendant-tenant was properly served in accordance with the Code of Civil Procedure.
Final Decision
The Supreme Court allowed the appeal, set aside the ex-parte decree dated 9.10.1993, and directed the Trial Court to proceed with the case from 23.2.1993, ensuring the tenant's right to contest was upheld.
Law Points
- Service of summons
- Ex-parte decree
- Order 9 Rule 13 CPC
- Irregularity in service
- Right to be heard
