Due service of summons is essential for a valid judgment. Knowledge of the proceedings cannot be imputed to a party based on a legal notice served at a given address if the summons were not duly served.

JUDGMENT :

Poonam A. Bamba, J.

1. The instant appeal has been preferred by the appellants under Section 104 of the Code of Civil Procedure, 1908 (“CPC”) read with Order XLIII rule 1(d) and Section 151 of the CPC against the order dated 21.01.2019 passed by the Ld. Single Judge in I.A. No. 2086-2087 of 2018 in CS(OS) No. 2222 of 2013 (“impugned order” in short). Vide impugned order, the Ld. Single Judge had dismissed the application filed by the appellants and the respondent No. 2 herein under Order IX rule 13 CPC for setting aside the ex-parte judgment/decree dated 15.01.2015 passed against them in CS(OS) No. 2222 of 2013.

2. Let me briefly mention the factual backdrop in which the present appeal came to be filed:

i. Mr. S.K Jain, the respondent No. 1 herein had filed a suit bearing No. CS(OS) No. 2222/2013 for recovery of Rs 25,00,000/- along with pendente lite and future interest etc. against the appellant No. 1, the partnership firm and its partners i.e. the appellant No. 2 and the respondent No. 2 herein;

ii. summons vide order dated 18.11.2013, were issued to the defendants i.e. the appellants and the respondent No. 2 herein, through all modes i.e. through ordinary course, registered post, speed post and through approved courier, returnable on 13.02.2014;

iii. On the next date of hearing i.e. 13.02.2014, the Joint Registrar has inter alia recorded about the summons as under:

“Summons issued by ordinary process received back unserved with the report that defendants have left the given address. However, summons sent by Registered Cover have been served as per the tracking report of the India post. Summons have also been served on defendant No. 3 by courier. Ld. Counsel for plaintiff has filed the tracking reports. In view of the tracking report of India post, I deem it to be an appropriate service on the defendants. Defendants are at liberty to file their written statements within the stipulated period with advance copy to ld. Counsel for plaintiff. Put up on 22.05.2014. Anil Kumar Sisodia (DHJC) JOINT REGISTRAR FEBRUARY 13, 2014”

iv. as neither anyone appeared on behalf of the defendants i.e. appellants and the respondent No. 2 herein nor did they file written statement, the Learned Single Judge vide order dated 15.01.2015 passed a decree in favour of the plaintiff i.e. respondent No. 1 herein observing inter alia as under:

“.......

1. The Joint Registrar in his order dated 13.2.2014 has noted that the summons sent to the defendant by Registered Cover have been served as per the tracking report of the postal department. None has appeared for the defendant nor has a written statement been filed.

2. A perusal of the plaint shows that the suit is filed for recovery of Rs.25 lacs. ....

3. The plaintiff served a legal notice on 30.09.2013. On 21.10.2013, Counsel for the defendant sent a reply where defendants have admitted the receipt of a sum of Rs.25 lacs by RTGS on 29.8.2013. ...... ...... ......

4. Accordingly, in view of order 8 Rule 10 CPC, I pass a decree in favour of the plaintiff for a sum of Rs. 25 lacs alongwith costs. The plaintiff shall also be entitled to pendent lite interest @ 9% per annum from the date of filing of the suit till recovery.

JAYANT NATH, J JANUARY 15, 2015”

v. against the aforesaid order dated 15.01.2015, the appellants and the respondent No. 2 herein, filed an application under Order IX rule 13 CPC bearing I.A No. 2086/2018 in CS(OS) No. 2222/2013, for setting aside of the said order/decree dated 15.01.2015; The said application was dismissed by Learned Single Judge vide order dated 21.01.2019 i.e. the impugned order for the reasons recorded therein;

vi. It is against this order of Learned Single Judge, the appellants have preferred the present appeal.

3. The appellants have challenged the impugned order dated 21.01.2019 of Learned Single Judge mainly on the grounds that:

i. the Ld. Single Judge failed to appr