Non-issuance of summons via mandatory ordinary process, absent exemption or plaintiffs' request for registered post, renders ex-parte decree vulnerable; lower courts' failure to consider this suspect circumstance rebuts service presumption, warranting remand. (32 words)

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, the petitioner has invoked revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure (for short the ‘Code’), to assail order dated 9.1.2020, passed by the learned District Judge Bilaspur in Civil Miscellaneous Appeal No. 5/14 of 2019, whereby the order dated 31.5.2019, passed by learned Civil Judge, Bilaspur in CMA No. 193/6 of 2009 has been affirmed.

2. The respondents herein (hereinafter referred to as the plaintiffs) had filed Civil Suit No. 54-1 of 2002 against the petitioner herein (hereinafter referred to as the defendant) for recovery of Rs. 54,450/- in the Court of learned Civil Judge, Bilaspur, District Bilaspur, H.P. The defendant was proceeded against ex-parte in the said suit and resultantly, an ex-parte decree was passed by the learned Civil Judge, Bilaspur on 30.7.2007 in favour of the plaintiffs.

3. The defendant filed an application under Order 9 Rule 13 of the Code for setting aside ex-parte decree dated 30.7.2007, passed in Civil Suit No. 54-1 of 2002. The application was presented on 16.10.2009. Another application under Section 5 of the Limitation Act was also filed, seeking condonation of delay, if any, in filing the application for setting aside ex-parte decree. However, later, the application under Section 5 of the Limitation Act was withdrawn by the defendant.

4. The setting aside of ex-parte decree was sought on the ground that the defendant had never been served in the suit. It was alleged that neither the summon was issued to the defendant nor she was ever served in accordance with law. The factum of passing of ex-parte decree had come to the notice of defendant on 5.10.2009, when Patwari Halqua had disclosed such fact. Thereafter, the defendant had applied for certified copies of the judgment and decree dated 30.7.2007, which was received by the husband of the defendant on 13.10.2009 and the application under Order 9 Rule 13 of the Code was filed thereafter without any further delay.

5. It was also alleged that the plaintiffs had managed the report of fictitious service of summon on the defendant through postman, who was near relative of the plaintiffs.

6. The application was contested by the plaintiffs. The averments made in the application were denied. It was averred that the summon was issued to the defendant through registered post (acknowledgment due). The defendant had refused to accept the same and accordingly, she was proceeded against ex-parte. The fact that the defendant was informed by the Patwari Halqua about the passing of ex-parte decree against her was specifically denied by the plaintiffs.

7. The learned trial Court framed the following issues: -

“1. Whether there are sufficient grounds to set aside the exparte decree dated 30.7.2007? OPA

2. Whether the application is not maintainable in the present form? OPR

3. Whether the application is barred? OPR

4. Whether the application has been filed without cause of action? OPR

5. Relief.”

Issues No. 1 and 4 were answered in negative, whereas all other issues were answered in affirmative and the application of the defendant for setting aside the ex-parte decree was dismissed.

8. Aggrieved against the order of dismissal of the application under Order 9 Rule 13 of the Code, the defendant preferred appeal under Order 43 Rule 1 of the Code before the learned District Judge, Bilapsur, which also came to be