The main legal point established in the judgment is that the summons had been duly served on the defendant, and the court should not set aside an ex parte decree merely on the ground of irregularity of service of summons if the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

BADAR DURREZ AHMED, J (ORAL)

1. This appeal is directed against the order dated 23.09.2013 passed by a learned single Judge of this court in IA no. 914/2013 which was an application under Order IX Rule 13 CPC and section 5 of the Limitation Act read with section 151 CPC for setting aside the ex parted decree dated 26.09.2012. The suit (CS(OS) No. 79/2012) had been filed by the defendant seeking specific performance of the sale deed dated 30.11.2011 in respect of the ground floor of the premises bearing no. 80/65A, Malviya Nagar, New Delhi, (hereinafter referred to as ‘the suit property’). The main point urged by the appellant before the learned single Judge while arguing the said application for setting aside the ex parte decree was that as per the memo of party filed with the plaint, the appellant was stated to be residing at 80/55A, second floor, Malviya Nagar, New Delhi, whereas all the documents including the sale deed etc. filed on record showed that the appellant/defendant was a resident of 80/65A, Malviya Nagar, New Delhi. The allegation was that the respondent/plaintiff did not serve the defendant and surreptitiously obtained an ex parte decree.

2. It is an admitted position that the suit was filed in January 2012 and on the first date of hearing i.e 10.01.2012, the learned single Judge had issued summons in the suit and notice in IA no. 555/2012 which had been filed under Order 39 Rule 1&2 Code of Civil Procedure (CPC). The returnable date was 08.05.2012 before the Joint Registrar. Inasmuch as, the learned single Judge had restrained the appellant/defendant and had directed the appellant/defendant to maintain the status quo with regard to the title and possession of the suit property, compliance under order 39 Rule 3 CPC was to be done by the respondent/plaintiff. The respondent/plaintiff sent copies of the plaint, the application under Order 39 Rule 1&2 CPC and the order passed by the court to the appellant/defendant at the address 80/55A, second floor, Malviya Nagar, New Delhi. An affidavit of compliance had been filed by the respondent/plaintiff under Order 39 Rule 3 CPC stating that the respondent/plaintiff had sent the entire plaint along with the documents through registered post and courier, however, the same were refused by the appellant/defendant on three dates i.e. 13th ,14th and 16th of January 2012.

3. It is also clear from the record that the summons that were issued in the suit were sent by registered post as well as through process server. Insofar as, the summons through registered post was concerned, the same was stated to have been refused by the appellant/defendant on 08.02.2012. The endorsement indicated that the appellant/defendant refused to take the articles which obviously included the plaint and the other documents along with it. As regards the service of summons through process server is concerned there is a similar endorsement that on 04.02.2012 when the process server went to the address of the appellant/defendant at 80/55A, Malviya Nagar, New Delhi, the appellant/defendant refused to accepted the same. There is another report of the process server also that, when the process server went to serve the summons on 13.02.2012, the appellant/defendant refused to accept the same. Consequently, when the matter was listed before the Joint Registrar on 08.05.2012, he recorded that on account of the refusal on the part of the appellant/defendant to accept the service under registered post, the summons stood served. Thereafter, the appellant/defendant was proceeded ex parte by virtue of the order of the learned single Judge dated 29.05.2012and the ex parte decree was passed on 26.09.2012.

4. According to the learned counsel for the appellant/defendant the summons not having been duly served, the ex parte decree ought to have been set aside. In order to establish this claim, the learned counsel for the appellant submitted that the summons ought to have been served in the manner as indicated in