Case Note & Summary
The petitioners, original plaintiffs, filed a suit for specific performance against the respondent/defendant based on an agreement dated 4th April 1996. The suit was registered as Special Civil Suit No. 1491 of 2009. The trial court issued summons to the defendant, but the defendant did not appear. The court decreed the suit ex-parte on 8th November 2011 after considering the plaintiff's affidavit and documents. Nearly two years later, the defendant filed an application to set aside the ex-parte decree along with an application for condonation of delay. The trial court condoned the delay but rejected the application to set aside the ex-parte decree on 16th February 2015, holding that the summons were duly served. The defendant appealed, and the appellate court (District Judge-7, Pune) allowed the appeal on 13th November 2017, setting aside the ex-parte decree and directing the defendant to file a written statement. The plaintiffs challenged this appellate order in the present writ petition. The High Court examined the bailiff's reports, which stated that on both occasions the defendant 'had left the premises'. The High Court found that the appellate court had erroneously concluded that the defendant was not residing at the given address, whereas the bailiff's remark indicated only that he was not present at the time of service. The High Court held that the service by affixture at the last known address under Order 5 Rule 20 CPC was valid. The appellate court's reasoning that the plaintiffs did not prove affixture of summons in a newspaper was irrelevant and wrong. Consequently, the High Court quashed the appellate order and restored the trial court's order rejecting the application to set aside the ex-parte decree. The writ petition was allowed with costs.
Headnote
A) Civil Procedure - Service of Summons - Order 5 Rule 20 CPC - Validity of Service - The court considered whether service by affixture at the last known address was valid when the bailiff reported that the defendant 'had left the premises'. The High Court held that the bailiff's report of 'left premises' does not mean the defendant was not residing; it indicates he was not present at the time of service. The affixture at the last known address, coupled with the defendant's failure to appear despite knowledge, constitutes valid service. (Paras 4-6) B) Civil Procedure - Ex-parte Decree - Setting Aside - Order 9 Rule 13 CPC - The appellate court's order setting aside the ex-parte decree was quashed as it was based on a wrong finding of fact regarding service. The trial court had correctly rejected the application to set aside the ex-parte decree. (Paras 3-6) C) Civil Procedure - Condonation of Delay - Section 5 of Limitation Act - The delay in filing the application to set aside the ex-parte decree was condoned by the trial court, but the application itself was rejected on merits. (Para 3)
Issue of Consideration
Whether the service of summons on the defendant was valid under Order 5 Rule 20 of the Code of Civil Procedure, 1908, and whether the appellate court erred in setting aside the ex-parte decree.
Final Decision
The High Court allowed the writ petition, quashed the appellate order dated 13th November 2017, and restored the trial court's order dated 16th February 2015 rejecting the application to set aside the ex-parte decree. The respondent was directed to pay costs.
Law Points
- Service of summons
- Order 5 Rule 20 CPC
- Ex-parte decree
- Setting aside ex-parte decree
- Condonation of delay
