Case Note & Summary
The present First Appeal was filed by the original defendants challenging the judgment and decree dated 30.7.2004 passed by the learned Chamber Judge, City Civil Court, Ahmedabad in Summary Civil Suit No.3702 of 2002. The appellants contended that the trial court had decreed the suit ex-parte despite the fact that the summons of the suit was not duly served upon them. They pointed out that the Bailiff report dated 5.4.2004 (Mark 8) indicated that the summons had returned back unserved, yet the trial court relied upon the Rojkam dated 23.6.2004 which mentioned 'refusal' of the summons and passed an ex-parte decree. The appellants sought an opportunity to defend the suit, arguing they had a good case on facts and law, and prayed for the judgment and decree to be quashed and set aside and the matter remanded back to the trial court for expeditious final hearing. The respondent-plaintiff's counsel could not contradict the factual position and could not point out from the record that the summons was duly served. The High Court, upon perusal of the Recorded & Proceedings, observed that the Bailiff report dated 5.4.2004 along with other endorsements prior to the Rojkam entry showed that the summons had not been served. The court noted that the Rojkam entry of 'refusal' was not supported by any prior service attempt. Consequently, the High Court held that the ex-parte decree was not sustainable and set it aside, remanding the matter to the trial court for fresh hearing and directing the parties to appear before the trial court on 23.2.2026. The court also directed the trial court to decide the suit as expeditiously as possible, preferably within six months from the date of appearance.
Headnote
A) Civil Procedure - Service of Summons - Ex-parte Decree - Summary Suit - The trial court decreed the suit ex-parte despite the Bailiff report dated 5.4.2004 indicating that the summons had returned unserved, relying instead on a Rojkam entry of 'refusal' dated 23.6.2004. The High Court held that the ex-parte decree was not sustainable as there was no proper service of summons, and the defendants were denied an opportunity to defend. The judgment and decree were set aside and the matter remanded for fresh hearing. (Paras 3-6)
Issue of Consideration
Whether the ex-parte decree passed by the trial court was valid when the summons of the suit was not duly served upon the defendants.
Final Decision
The High Court allowed the appeal, set aside the ex-parte judgment and decree dated 30.7.2004, and remanded the matter to the trial court for fresh hearing. The parties were directed to appear before the trial court on 23.2.2026, and the trial court was directed to decide the suit as expeditiously as possible, preferably within six months from the date of appearance.
Law Points
- Service of summons
- Ex-parte decree
- Summary suit
- Due service
- Opportunity of hearing
