Case Note & Summary
The dispute arose from a commercial suit where the respondent claimed that the appellant defaulted on a loan of ₹25,00,000, leading to an ex-parte decree against the appellant. The appellant contended that he was not properly served with the summons, as it was sent to an under-construction site rather than his known address. The respondent had issued three cheques as loan repayment and claimed that the appellant had acknowledged receipt of the loan and paid interest until September 2016. After the appellant stopped payments, the respondent filed a suit in the City Civil Court, which decreed the suit ex-parte based on the respondent's affidavit of service. The appellant argued that the service was invalid under the Code of Civil Procedure, 1908, as it did not comply with the required rules for service of summons. The court analyzed the service affidavit and found that the respondent had failed to serve the summons at the correct addresses listed in the plaint. The court emphasized that the plaintiff must prove the existence of relevant facts for a decree to be valid, and the trial court's reliance on the affidavit without proper evidence was insufficient. Consequently, the High Court quashed the ex-parte decree and ordered the suit to be restored for a hearing on merits, allowing the appellant to file a written statement within four weeks. The decision underscored the importance of proper service of summons and the right to be heard in legal proceedings.
Headnote
A) Civil Procedure - Service of Summons - Validity of Service - Code of Civil Procedure, 1908, Order V, Rules 1, 9, 9A, 10 - The court held that the service of summons was not valid as it was served at an under-construction site instead of the appellant's known address, violating the mandatory provisions of the CPC. The trial court's reliance on the respondent's affidavit of service without proper verification led to an ex-parte decree, which was quashed and set aside (Paras 9-15).
Issue of Consideration
Whether the service of summons was valid and whether the ex-parte decree should be set aside.
Final Decision
The High Court quashed the ex-parte decree dated 20th April 2022, restored the suit for a hearing on merits, and directed the appellant to file a written statement within four weeks.
Law Points
- Service of summons
- ex-parte decree
- compliance with CPC
- burden of proof
- right to be heard
