The procedural requirement to affix summons at a defendant's residence upon inability to effect personal service is mandatory. Substituted service via publication cannot be resorted to unless these foundational steps are exhausted, and failure to comply renders the service invalid and the subsequent ex-parte decree liable to be set aside.

JUDGMENT & ORDER :

KAUSHIK GOSWAMI, J.

Heard Mr. N. N. Upadhyaya, learned counsel appearing for the petitioners. Also heard Mr. P. J. Saikia, learned Senior Counsel assisted by Mr. A. K. Gupta, learned counsel appearing for the respondent Nos. 1, 4, 5, 6, 7 and 9.

2. None appears for the remaining respondents on call despite service being effected by way of paper publication as observed by this Court earlier on 24.03.2025.

3. By way of this Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “CPC”), the petitioners have assailed the impugned Judgment and Order dated 06.09.2018 passed by the learned Additional District Judge, Dibrugarh in Misc. Appeal No. 5/2017, whereby the order dated 30.09.2014 passed by the learned Munsiff No. 2, Dibrugarh in Misc. (J) Case No. 24/2013 under Order IX Rule 13 of the was set aside and quashed.

4. The brief facts of the case are that the petitioners, as plaintiffs, instituted Title Suit No. 37/2006 before the Court of the learned Munsiff No. 1, Dibrugarh against the defendants/respondents seeking a decree for eviction of the defendants/respondents from a portion of the suit land and for perpetual injunction restraining them from interfering with the peaceful possession of the plaintiffs or committing any act detrimental to their rights over the suit land.

5. Despite service of summons, the defendants did not appear to contest the suit. Consequently, the suit proceeded ex-parte and was decreed by judgment and decree dated 02.07.2009, declaring the plaintiffs as the rightful owners having valid right, title and interest over the suit land. The defendants were declared trespassers and directed to vacate the encroached portion by removing their structures, and were permanently restrained from interfering with the plaintiffs’ possession.

6. Aggrieved by the ex-parte decree, respondent No. 1 filed an application under Order IX Rule 13 read with Section 151 of the CPC, registered as Misc. (J) Case No. 24/2013, seeking setting aside of the decree. The learned trial Court, by order dated 30.09.2014, rejected the application holding that summons had been duly served and refused by the defendant. Thereafter, respondent No. 1 preferred Misc. Appeal No. 5/2017 before the Civil Judge, Dibrugarh, and the appellate Court, by the impugned order dated 06.09.2018, allowed the appeal and set aside both the ex-parte decree and the order rejecting the application under Order IX Rule 13 of the .

7. Mr. N. N. Upadhyaya, learned counsel for the petitioners, contends that the appellate Court erred in law in disregarding substituted service effected through newspaper publication in Asomiya Pratidin dated 19.02.2008. It is submitted that the provisions of Order V of the CPC are procedural and directory in nature, and any deviation therefrom constitutes, at best, an irregularity insufficient to warrant setting aside an ex- parte decree. Reliance is placed on Basant Singh & Anr. Vs. Roman Catholic Mission, reported in 2002 All SCR 547.

8. Per contra, Mr. P. J. Saikia, learned Senior Counsel for the respondents, submits that the appellate Court, having recorded a categorical finding that summons was not duly served, rightly set aside the ex-parte decree, and such finding does not warrant interference in revisional jurisdiction. It is further contended that compliance with Order V Rules 17 and 20 of the CPC is mandatory. Reliance is placed on Shri K. Raja Vs. V. Prabhakar , reported in 2025 STPL 1616 (Karnataka).

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