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HIMACHAL PRADESH HIGH COURT
Satyen Vaidya, J.
Devi Dass – Petitioner
versus
M/s Ginni Global Pvt. Ltd.
and Anr. – Respondents
CMPMO No.305 of 2022
Decided on 1.7.2025
Counsel for the Parties:
For the Petitioner:Mr. Sanjeev Bhushan, Sr. Advocate with Mr. Sparsh Bhushan, Advocate
For the Respondents:Mr. Vikas Chauhan, Advocate
IMPORTANT POINT
Setting aside ex-parte decree – Plea of non-service of summons – Court is mandated to examine Serving Officer on oath and to hold further inquiries in the matter as it thinks fit, in case where returned summons have not been verified by affidavit of Serving Officer.
Headnote:
Civil Procedure Code, 1908 – Order 9 Rule 13 read with Order 5 Rule 17 – Limitation Act, 1963 – Section 5 – Setting aside ex-parte decree – Plea of non-service of summons – Court is mandated to examine Serving Officer on oath and to hold further inquiries in the matter as it thinks fit, in case where returned summons have not been verified by affidavit of Serving Officer – In other case where summon is returned under Rule 17 CPC, after verification by Serving Officer, requirement is merely directory – Since in instant case, report of Serving Officer was verified, it was not mandatory for Court to have examined Serving Officer or to hold any other further inquiry – Absence at the most can be construed as an irregularity – When summons alongwith a copy of plaint issued by court was affixed on main gate of office of defendants, it is hard to assume that no one had come to know about fact of such affixation or filing of suit – Service of summons was proper and it can be said that it was a case of mere irregularity in service of summons – Order passed by Senior Civil Judge set aside and applications of defendants under Order 9 Rule 13 of CPC and under Section 5 of Limitation Act dismissed. (Paras 27, 29, 30, 31, 32 and 33)
Result: Petition allowed.
JUDGMENT
Satyen Vaidya, J.—This petition has been filed under Article 227 of the Constitution of India against order dated 19.03.2022 passed by learned Senior Civil Judge, Chamba, District Chamba, H.P. in CMA No.507/2017 whereby the applications of the respondents under Order 9 Rule 13 of CPC and Section 5 of the Limitation Act, have been allowed.
2. The petitioner herein is the plaintiff in Civil Suit No. 632 of 2014 pending on the files of learned Senior Civil Judge, Chamba. He has sought a decree of Rs.20,00,000/- 1 Whether reporters of print and electronic media may be allowed to see the order? alongwith interest against the respondents herein. The parties hereafter shall be referred to by the same status as they hold before learned trial Court.
3. The defendants were proceeded against exparte in Civil Suit No. 632 of 2014 on 17.04.2015. Thereafter, the learned trial Court passed an exparte decree dated 12.06.2017 in favour of the plaintiff and against the defendants.
4. The defendants by separate applications filed under Order 9 Rule 13 of CPC and Section 5 of the Limitation Act before learned trial Court prayed for settingaside the exparte decree after condonation of delay. The applications were filed on 01.11.2017.
5. As per the case of the defendants, they were never served with the process, if any, issued by the Court in Civil Suit No. 632 of 2014. It was stated that the defendants came to know about the filing of the suit and consequent exparte decree passed therein on 27.10.2017 and 30.10.2017 whereafter the relevant documents including certified copy of decree were procured and the applications for setting aside exparte decree as also for condonation of delay were filed on 01.11.2017.
6. The defendants further alleged that from the records it was revealed that the summons issued to the defendants were served on the defendants on 27.03.2015 by way of affixation and thereafter on 17.04.2015 they were proceeded exparte on the basis of report submitted by the Process Server. It is alleged that no such proceeding was conducted by the Process Server and the reports submitted by him was not correct.
7. On notice, the plaintiff contested the applications by filing the reply.
8. On the pleadings of the parties, the following issues were framed on 26.09.2019:-
“1. Whether the applicant is entitled for setting aside the ex-parte decree dated 26.09.2015, as prayed? OPA
2. Whether the application is not maintainable, as alleged? OPR.
3. Relief.
9. Learned trial Court decided the issue No.1 in affirmative, whereas issue No.2 was negated. Accordingly, the applications of the defendants for setting aside exparte decree and condonation of delay were allowed.
10. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
11. While allowing the applications of the defendants, learned trial Court has held that the defendants were not properly served because the Process Server had not filed any affidavit that he had affixed the summons under Order 5 Rule 17 of the Code and further that the Process Server was not examined by the Court as per the provisions of Order 5 Rule 19.
12. Noticeably, in the impugned order, learned trial Court has also recorded that prima-facie it looked that Process Server RW-3 duly served the notice in accordance with law.
13. Thus, the findings returned by the learned trial Court are contradictory.
14. The sole ground of defendants for seeking setting aside of exparte decree was that they had no knowledge about the filing of the suit because they were not served in the case at any point of time. Simultaneously, the defendants also alleged that the report submitted by the Process Server with respect to service effected on the defendants is not based on factual position.
15. The parties have led evidence before learned trial court. The defendant is a Company and its three officials namely Alok Malhotra (Director), Satish Singh (General Manager) and Vikram Rath
