Case Note & Summary
The appellant, M/s Arjun Travels, a sole proprietorship concern, was the owner of a vehicle involved in a motor accident. The respondents, being the legal representatives of the deceased, filed a claim petition before the Motor Accident Claims Tribunal seeking compensation. The Tribunal issued summons to the appellant, but the process server reported that the appellant was not available and affixed the summons at the address. The Tribunal proceeded ex-parte and passed an award against the appellant. The appellant filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) to set aside the ex-parte decree, which was dismissed by the Tribunal. Aggrieved, the appellant filed the present appeal. The High Court examined the record and found that the process server had not made any prior attempt to serve the summons personally before resorting to affixture. The court noted that under Order V Rule 17 CPC, service by affixture is permissible only when the defendant is avoiding service and after the court records satisfaction that service cannot be effected in the ordinary way. In this case, the process server merely stated that the appellant was not available and affixed the summons without any attempt at personal service. The court held that such service was not in accordance with law and the appellant had sufficient cause for non-appearance. Consequently, the High Court allowed the appeal, set aside the ex-parte decree, and restored the claim petition to the file of the Tribunal for fresh adjudication, subject to the appellant paying costs of Rs. 5,000 to the respondents.
Headnote
A) Civil Procedure - Service of Summons - Order V Rule 17 CPC - Affixture - Service by affixture is permissible only after the court is satisfied that the defendant is avoiding service and after an attempt at personal service has been made - In the present case, the process server did not attempt personal service before resorting to affixture, and the court did not record satisfaction that service could not be effected in the ordinary way - Held that the service was not in accordance with law and the ex-parte decree is liable to be set aside (Paras 8-12). B) Motor Vehicles Act - Claim Petition - Ex-parte Decree - Order IX Rule 13 CPC - Setting Aside - The appellant, owner of the offending vehicle, was not properly served with summons in the claim petition - The Tribunal proceeded ex-parte and awarded compensation - The appellant filed an application under Order IX Rule 13 CPC which was dismissed - Held that the appellant had sufficient cause for non-appearance and the ex-parte decree must be set aside subject to payment of costs (Paras 13-15).
Issue of Consideration
Whether the service of summons upon the appellant was valid and in compliance with the provisions of the Code of Civil Procedure, 1908, and consequently, whether the ex-parte decree passed against the appellant is liable to be set aside.
Final Decision
The High Court allowed the appeal, set aside the ex-parte decree, and restored the claim petition to the file of the Motor Accident Claims Tribunal for fresh adjudication, subject to the appellant paying costs of Rs. 5,000 to the respondents.
Law Points
- Service of summons by affixture is permissible only after reasonable diligence in attempting personal service
- Order V Rule 17 CPC
- Ex-parte decree set aside if service is not in compliance with law
- Sufficient cause for setting aside ex-parte decree under Order IX Rule 13 CPC
