The defendant must prove lack of proper service and sufficient cause preventing appearance to set aside an ex-parte judgment. Irregularity in summons service is not sufficient if the defendant had notice of the hearing and sufficient time to appear.

JUDGMENT

Manjari Nehru Kaul, J. - The defendant/petitioner is impugning order (Annexure P-5) dated 20.11.2018 passed by learned Addl. Civil Judge (Sr. Division), Gurdaspur and order (Annexure P-7) dated 08.08.2022 passed by learned Addl. District Judge, Gurdaspur, vide which application under Order IX Rule 13 CPC for setting aside ex-parte judgment and decree dated 09.02.2016 was dismissed.

2. Learned counsel inter alia contends that the courts below, while passing the above said impugned orders, failed to appreciate that the petitioner was neither served properly nor was he aware about the pendency of the suit in question. Still further, the petitioner had led ample evidence to substantiate his case of no proper service having been effected, however, it was erroneously ignored by both the Courts below. Learned counsel has urged that the petitioner is an illiterate person, who had been erroneously attributed the knowledge qua the pendency of the suit in question. He urged that it did not appeal to prudence that the petitioner, even though knowing that he had a good case on merits, would intentionally fail to appear and contest the suit in question. It was also contended that it is settled principle of law that no person should be condemned unheard and the suit must be decided on merits after affording due opportunity of hearing to both the parties and more so, in the case in hand, as respondent No.1 in his crossexamination categorically deposed that he would have no objection if the petitioner had contested the case.

3. I have heard learned counsel for the petitioner and perused the relevant material on record.

It would be relevant to reproduce Order IX Rule 13 CPC to deal with the matter in issue, which reads as under:-

'ORDER IX

APPEARANCE OF PARTIES AND CONSEQUENCE

OF NON APPEARANCE

XXXX XXXX XXXX

13. Setting aside decree ex parte against defendant

In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an Order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an Order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

PROVIDED that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendant also:

PROVIDED FURTHER that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim."

4. A perusal of the above reproduced provisions of law reveals that in order to succeed in his claim for setting aside of an ex-parte judgment and decree, the plaintiff would have to first satisfy the Court that he/she was not served with the summons. Further, as per the second proviso, if the Court is satisfied that the defendant had due notice of the date of hearing and had sufficient time to appear and answer the claim of the plaintiff, then an ex-parte judgment and decree should not be set aside on the ground that there had been some irregularity in the service of summons.

5. Adverting to the case in hand, the petitioner has prayed for setting aside of an ex-parte judgment and decree dated 09.02.2016 (Annexure P-1) on the ground that he was unaware about the pendency of the suit in question as he had never been served with the summons.

6. A perusal of the impugned orders reveals that the report of the process server Ex.R1 does bear the thumb impressions of the petitioner, and when the petitioner was confronted with the said fact during his cross-examination, he did not deny affixation of his thumb i