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2025 Supreme(Online)(Del) 46270
IN THE HIGH COURT OF DELHI AT NEW DELHI
Tushar Rao Gedela, J, Devendra Kumar Upadhyaya, CJ
HARISH MITTAL – Appellant
Versus
KISHAN GOPAL RATHI – Respondent
FAO (COMM)-247/2024
For the Appellants/Petitioners: Vikas Khatri, Manas Khatri
For the Respondents: Pankaj Garg, Basab Sengupta
Substituted service under Order V Rule 20 is a measure of last resort, permissible only after exhausting ordinary modes of service. It is ineffective where a plaintiff provides incorrect addresses, as such failure renders an ex parte decree legally unsustainable and liable to be set aside.
Headnote:(A) Code of Civil Procedure, 1908 - Order V Rule 20, Order IX Rule 13 - Service of summons - Ex parte decree - Substituted service - Held, substituted service is a last resort to be exercised only after exhausting ordinary modes of service including, where necessary, affixation under Order V Rule 17 - Where a plaintiff knowingly provides incorrect addresses in the memo of parties, service by publication cannot be deemed effective and is insufficient to sustain an ex parte decree. (Paras 11, 24, 26, 29)
(B) Practice and Procedure - Service of process - Obligation of plaintiff to provide correct addresses - Where subsequent proceedings reveal that the plaintiff was in possession of correct contact information for the defendant, failure to disclose the same at the inception of the suit, which directly results in the failure of service, warrants the setting aside of ex parte orders to ensure a fair opportunity to defend. (Paras 9, 25)
Facts of the case:
The plaintiff initiated a recovery suit, during which the summons remained unserved because the addresses provided by the plaintiff were either incorrect or no longer occupied by the defendant. The trial court permitted service by publication (substituted service), which resulted in an ex parte decree. The defendant learned of the decree only when execution proceedings were initiated at his correct residence and subsequently challenged the ex parte decree, which the trial court dismissed.
Findings of Court:
The appellate court observed that the addresses provided by the plaintiff at the time of filing were inaccurate. The court concluded that substituted service was invalid as it was not a last resort following proper service attempts, nor was it effective given the plaintiff's failure to provide known valid addresses. Consequently, the dismissal of the application for setting aside the ex parte decree was held to be legally untenable.
Issues: Whether service of summons by substituted means was legally valid despite the incorrect address provided by the plaintiff, and whether an ex parte decree obtained under such circumstances should be set aside.
Ratio Decidendi: Substituted service cannot be deemed as effective or valid when a plaintiff neglects to provide accurate contact information, thereby bypassing the mandatory procedural requirements for serving a defendant through ordinary means.
Result: Appeal allowed; impugned order set aside; matter remanded to the trial court for fresh adjudication; ex parte decree directed to remain stayed.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 15.12.2025
Judgment delivered on: 22.12.2025
+ FAO (COMM) 247/2024 & CM APPL. 75267/2024
HARISH MITTAL .....Appellant
versus
KISHAN GOPAL RATHI .....Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Vikas Khatri and Mr. Manas Khatri, Advocates.
For the Respondent : Mr. Pankaj Garg and Mr. Basab Sengupta,
Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
J U D G M E N T
TUSHAR RAO GEDELA, J.
1. Present appeal has been filed under Order 43 Rule 1 of CPC, 1908
against the order dated 22.11.2024 passed by the learned District Judge
(Comm.), Karkardooma Courts, Delhi in Misc. DJ No.583/2024 titled Harish
Mittal vs. Kishan Gopal Rathi whereby the application of the
appellant/defendant under Order IX Rule 13, CPC read with Section 151,
CPC, 1908 seeking setting aside of the ex parte decree and judgement dated
17.05.2023 passed in CS(COMM) 535/2021 titled Shri Kishan Gopal Rathi
vs. Shri Harish Mittal was dismissed. The present appeal also assails the ex
parte decree and judgement dated 17.05.2023 whereby the suit was decreed in
favour of the respondent/plaintiff for an amount of Rs.7,72,526/- along with
Signature Not Verified
FAO(COMM) 247/2024 Page 1 of 16
Digitally Signed
By:YASHRAJ
Signing Date:22.12.2025
17:02:44
##PAGE2##pendente lite and future interest @ 9% per annum till its realization; with
costs and expenses.
2. In December, 2021, a suit bearing CS(COMM) 535/2021 for recovery
of a sum of Rs. 7,72,526/- was filed by the respondent/plaintiff against the
appellant/defendant before the learned District Judge, Karkardooma Courts,
Delhi. Summons of the recovery suit were issued upon the
appellant/defendant returnable on 01.02.2022. However, the
appellant/defendant remained unserved and fresh summons were issued
through ordinary as well as electronic mode subject to filing of affidavit of
correctness as per Rule 12 of the Delhi Court Services of Process (Civil
Proceeding) Rules, 2010 returnable on 14.03.2022. On 14.03.2022, the
appellant/defendant was reported to be served through Whatsapp/E-mail.
However, it was observed that as the Nazarat branch neither informed the
appellant/defendant over phone, nor it was mentioned whether the said e-mail
was duly received or bounced back, nor the screenshots of the e-mail and
Whatsapp have been annexed, hence, fresh summons were issued.
3. On 11.05.2022, the summons again remained unserved and the
respondent/plaintiff sought liberty to move an application under Order V
Rules 20, CPC for substituted service. Thereafter, on 30.05.2022, the said
application moved by the respondent/plaintiff for substituted service of the
appellant/defendant was allowed by the learned Trial Court observing that the
defendant cannot be served by ordinary process and it is avoiding the service.
Accordingly, the respondent/plaintiff served the appellant/defendant by
substituted mode, by way of publication in the national newspaper “The
Statesman” dated 12.06.2022. On 01.12.2022, the learned Trial Court
observed that the defendant was duly served with the summons of suit by
Signature Not Verified
FAO(COMM) 247/2024 Page 2 of 16
Digitally Signed
By:YASHRAJ
Signing Date:22.12.2025
17:02:44
##PAGE3##substituted means yet not appeared and thus, was proceeded ex parte.
4. Thereafter, after hearing the arguments and examining the evidence led
by the respondent/plaintiff, the learned Trial Court passed the ex parte decree
and judgement dated 17.05.2023 whereby the suit was decreed in favour of
the respondent/plaintiff for an amount of Rs.7,72,526/- along with pendente
lite and future interest @ 9% per annum till its realization; with costs and
expenses.
5. In April, 2024, an execution petition bearing EX (COMM) 73/2024
was filed by the respondent/plaintiff. It is the case of the appellant/defendant
that it was when the Bailiff appointed by the Court came to the residence with
warrants of attachment to execute the decree that the appellant, for the first
time, ca
