Without witness verification of address, summons service is not complete../

Rajasthan High Court: Service of Summons Defective Without Witness Verification – Ex Parte Decree Set Aside

In Ram Kishan v. Ram Dai (S.B. Civil Writ Petition No. 3789/2021), Justice Anoop Kumar Dhand of the Rajasthan High Court set aside an ex parte decree in a suit for declaration and permanent injunction, holding that in the absence of a witness verifying the defendant’s address, service of summons cannot be deemed complete under Order 5 Rule 17 CPC.

Background

The respondent filed a suit for declaration and permanent injunction before the Assistant Collector. The petitioner initially filed a written statement. The suit was twice dismissed—first for non-appearance of the respondent and later for non-payment of costs—but was restored on appeal. Upon remand, summons to the petitioner were allegedly served by affixing them at a conspicuous place at his house in his absence. The trial court proceeded ex parte and passed a decree.

The petitioner’s appeal before the Revenue Appellate Authority (RAA) and second appeal were dismissed, leading to the present writ petition.

Petitioner’s Contentions

• The summons were improperly served, violating Order 5 Rule 17 CPC.
• The process server neither met the petitioner nor obtained a local witness’s signature confirming the address.
• The lack of verification rendered service incomplete, making the ex parte proceedings unsustainable.

Respondent’s Contentions

• The appeal under Section 96(2) CPC before the RAA was not maintainable, as the ex parte decree had not been challenged on merits.
• Reliance placed on N. Mohan v. R. Madhu.

Court’s Observations

The court reiterated that a defendant has two statutory remedies against an ex parte decree:

1. Order 9 Rule 13 CPC – Application to set aside ex parte decree by proving non-service or sufficient cause for non-appearance.
2. Section 96(2) CPC – Filing a regular appeal challenging the decree on merits.

The right to appeal under Section 96(2) CPC is substantive and cannot be denied merely because the defendant did not first apply under Order 9 Rule 13 CPC.

On service of summons, the court stressed that under Order 5 Rule 17 CPC, when the defendant cannot be found, the process server may affix summons to a conspicuous part of the residence only after obtaining the signature of a local witness identifying the premises. Without such verification, service is defective.

In this case, no witness signature was obtained, and there was no refusal of summons—only absence—making the service incomplete.

Decision

The High Court held that the summons were not duly served. It quashed all three impugned orders and remitted the matter to the Assistant Collector with directions to:

• Frame fresh issues, and
• Give both parties an opportunity to present evidence before deciding the matter on merits.

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Coram: Justice Anoop Kumar Dhand
Advocates for Petitioner: Dinesh Khandelwal, Gauri Meena
Advocates for Respondent: Amit Kuri, Dharma Ram, Nandini Mirdha, Harshvardhan Shekhawat, Rajesh Kumar Bairwa, Aatish Jain