A defendant who deliberately avoids service of summons for a prolonged period, leading to substituted service, cannot invoke Order IX Rule 13 CPC to set aside an ex-parte decree on the vague assertion of non-service.

O R D E R

% 06.01.2026

1. The present appeal has been filed under order XLIII rule (1) (D) read with Section 104 C.P.C seeks setting aside of the order dated 16.03.2019 passed by the learned Trial court whereby the application filed by the appellant under Order IX Rule 13 CPC seeking setting aside the ex-parte decree which came to be dismissed on 20.01.2018.

2. Notably, the respondent/plaintiff had preferred the suit claiming therein that he purchased the suit property from one Talvinder Singh by way of registered sale deed dated 10.02.2012. It was further claimed that the appellant/defendant had unauthorizedly occupied the suit property, pursuant to which FIR no. 289/2007 under Sections 448/120 B IPC was registered on the complaint of said Talvinder Singh. The record further reveals that the previous owner had also filed a complaint in the Police Station against the appellant claiming that he had taken physical possession of the suit property and proceedings under Section 145 Cr.P.C. were also initiated. In the said proceedings, both parties were subsequently directed to approach the concerned Civil Court for establishing their respective claim for title.

3. In the suit proceedings, the appellant was proceeded ex-parte and eventually an ex-parte judgement and decree was passed against him on 20.01.2018. The appellant preferred the subject application Order IX Rule 13 claiming that he was never served with summons in the suit and that he became aware of the passing of the same against him only in the second week of June, 2018, when the documents pertaining to the execution proceedings were received through speed post from the executing Court. It further claimed that the Talvinder Singh had no valid title to the suit property, as there was no exchange of flat between the appellants and one Mr. Sanjay Pal, through whom Talvinder Singh had claimed title. It was further claimed that the respondent had colluded with the process server and the postal authorities and had procured false and fabricated service reports. The said application was opposed by the respondent thereby denying the allegations of collusions and asserted that the appellant has deliberately avoided service of summons for a prolonged period of 4 years which is nothing but an abuse of the process of the Court.

4. Before proceeding further, it is apposite to note that considering the application under Order IX Rule 13 CPC, an ex-parte decree passed against the defendant can be set aside only if the Court is satisfied that either the summons were not duly served upon the defendant, or that he was prevented by any ‘sufficient cause’ from appearing when the suit was called for hearing.

5. In the present case, the appellant has claimed that it was never served with the summons. In the impugned order, the Trial Court noted that the present suit was initially instituted before High Court on 26.07.2012 and was subsequently transferred to the District Court on account of enhancement of pecuniary jurisdiction. The Trial Court further noted that the various attempts were made to serve the appellant over a period of 4 years. The relevant extract of the order is as under:

“17. The perusal of the record reveals that from 2012 to 2016 number of processes were sent to defendant which I will be elaborating in succeeding paragraphs and it is only on 30.03.2017, the defendant was served by way of publication.

18. The details/chronology of the various process sent to the defendant and its outcome are as follows:

i) Summons dated 28.08.2012 returned with the report that premises was found locked. Attempts were made on 14.09.2012 and on 01.10.2012. Summons