Proper service of notice to defendants residing out of the country as per Order 5 Rule 25 CPC and the right to a fair opportunity to defend the case are crucial legal principles established in the judgment.

ANIL KSHETARPAL, J.

1. The petitioner namely Gurjit Singh has filed the present revision petition under Article 227 of the Constitution of India for setting aside the order dated 08.09.2011 confirmed in appeal vide order dated 12.09.2006 whereby application filed by him for setting aside the ex parte decree dated 28.07.1994 has been rejected.

2. The plaintiff-Harsaroop Singh had filed a suit with assertion that although the plaintiff had executed a sale deed in favour of Gurjit Singh-petitioner and his sister Jagjot Kaur on 15.12.1986 for a total sale consideration of Rs.18,000/-, however, since remaining amount of Rs.15,000/- was not paid which was kept as security, therefore, the sale deed is liable to be set aside. The plaintiff had also arrayed the father of Gurjit Singhpetitioner and Jagjot Kaur namely Santokh Singh as party defendant.

3. Notices were issued to all the defendants. The order as recorded by the trial Court on 09.08.1991 is extracted as under:-

“Present :- Counsel for the plaintiff.

4. Summons not issued as PF RC not filed. The report on the previous RC reveals that service is not possible in the ordinary way of service as some of them have already left India. The plaintiffs have no other address of the defendant except given in the plaint. Hence all the defendants are ordered to be summoned by way of publication in the paper. The Tribune on deposit of PF & publication charges within three days for 10.10.91.

Sd/- SJIC 09.08.91”

5. A look at the order would show that although it was intimated to the Court that some of the defendants have already left the country. However, the learned Court chose to issue notices through publication in the Tribune. After publication, the petitioner and her sister were proceeded against ex parte vide order dated 30.11.1991. The plaintiffs filed an application for deleting the name of defendant No.3-Santokh Singh from the array of the parties. However, the said application was dismissed. The suit was decreed ex parte on 28.07.1994.

6. The petitioner filed an application for setting aside ex parte decree and proceedings on 07.11.1994.

7. The learned trial Court as well as the learned First Appellate Court has dismissed the application for setting aside the ex parte decree and order on the ground that at one stage Sh. Gurdev Singh, Advocate had appeared and filed memorandum of appearance on behalf of all the defendants. On the next date, Gurdev Singh filed Vakalatnama only for Santokh Singh. Therefore, it is apparent that the petitioner had knowledge of the pending suit. Courts have further recorded a finding that since father Santokh Singh was in knowledge and relationship between father and son are good, therefore, the petitioner was in knowledge of the suit. It has further been noticed by the Court that the application filed for setting aside ex parte decree was filed through attorney Ajit Singh. However, neither attorney Ajit Singh was appeared nor copy of the power of attorney was produced.

8. Order 5 Rule 25 CPC lays down a manner in which service is to be effected where defendants resides out of India. Order 5 Rule 25 CPC is extracted as under:-

“25. Service on defendant resides out of India and has no agent.- Where the defendant resides out of India and has not agent in India empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him or by post or by such courier service as may be approved by the High Court, by fax message or by electronic mail service or by any other means as may be provided by the rules made by the High Court, if there is postal communication between such place and the place where the court is situate:

9. Provided that where any such defendant resides in Bangladesh or Pakistan, the summons, together with a copy thereof, may be sent for service on the defendant, to any court in that country (not being the High Court) having jurisdiction in the place where the defendant resides:

10. Provided