The presumption of service via registered post with an endorsement of refusal is rebuttable. A specific sworn denial of service shifts the burden to the party asserting service to provide cogent evidence of actual tender. Judicial findings on limitation and service must be consistent to remain legally sustainable.

Headnote:(A) Civil Procedure Code, 1908 - Order IX Rule 13 - Commercial Courts Act, 2015 - Section 13(1A) - Evidence Act, 1872 - Sections 101, 103, 114(f) - General Clauses Act, 1897 - Section 27 - Ex parte decree - Setting aside of - Presumption of service - Registered post with endorsement of "refusal" - Burden of proof - Rebuttal of presumption - Findings on date of knowledge and due service must be consistent. (Paras 4, 9, 13)

(B) Service of Summons - Proper mode of service - Mere vague endorsement by postal authority without details of person is insufficient when disputed on oath - Necessity of adducing cogent evidence by the party asserting service after rebuttal - Consistency in judicial findings. (Paras 7, 11, 12, 13)

Facts of the case:
The trial court passed an ex-parte decree. An application was moved to set aside the decree, asserting that no service of summons had been effected and that the postal tracking report was insufficient. The trial court initially condoned the delay in filing the application by accepting the date of knowledge provided by the applicant, yet subsequently dismissed the application by finding that the defendant had been duly served.

Findings of Court:
The presumption of service by registered post with a "refusal" endorsement is rebuttable. A specific sworn denial of service by the defendant shifts the burden of proof to the plaintiff to produce cogent evidence of actual tender. The court held that findings acknowledging a specific date of knowledge for limitation purposes and findings of valid prior service were mutually destructive.

Issues: Whether service by registered post with a vague endorsement of "refusal" constitutes sufficient service in law and whether the trial court's findings regarding the limitation and service of summons were internally consistent.

Ratio Decidendi: An ex-parte decree must be set aside when the defendant provides a credible rebuttal to the presumption of service, and the plaintiff fails to discharge the secondary burden of proving actual tender. Judicial findings must be internally consistent, and a court cannot rely upon a finding of a delayed date of knowledge to condone a delay while simultaneously maintaining that the defendant had prior notice through due service.

Result: Appeal allowed. Application to set aside the ex parte decree is allowed. The ex parte judgment and decree is set aside.

Table of Content
1. procedural background and history of the case. (Para 1 , 2 , 3 , 4 , 5)
2. rebutting the presumption of service of summons. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14)
3. setting aside ex-parte decree and restoring suit. (Para 15 , 16 , 17 , 18)

JUDGMENT :

1. The present appeal under Order XLIII(d) of the Civil Procedure Code, 1908 ('CPC') read with Section 13(1A) of the Commercial Courts Act, 2015, assails the Order dated 18.11.2025, passed by the learned Trial Court, whereby the application of the Appellant under Order IX Rule 13 of the CPC was dismissed.

2. Briefly stated, the dispute inter se the parties arose out of alleged dealing pertaining to an arrangement of hotel/property on lease, pursuant to which the Respondent instituted Civil Suit (Comm.) No. 3873/2024. Vide order dated 28.11.2024, summons were directed to be issued to the Appellant. The case of the Respondent is that service was effected through registered post and placed a tracking report thereof on the record. On 17.01.2025, the learned Trial Court proceeded ex-parte against the Appellant on the basis of the tracking report filed by the Respondent. Subsequently, on 22.03.2025, the learned Trial Court passed an ex-parte Judgment and Decree in favour of the Respondent.

3. It is the case of the Appellant that he acquired knowledge of the ex-parte decree only on 11.04.2025, upon receiving communication from the Respondent's counsel via WhatsApp, and he was never served with any summons/notice.

4. Upon gaining such knowledge, the Appellant filed an application under Order IX Rule 13 CPC on 03.05.2025 along with a delay condonation application. In the affidavit filed by the appellant with the application, he claimed that the summons were not tendered to him by the Postal Department and the tracking report also does not mention the name of the Appellant, thus, asserting that no service of summons had been effected. The learned Trial Court condoned the delay in filing the said recall application. However, the said application was subsequently dismissed by the learned Trial Court vide Impugned Order dated 18.11.2025. Aggrieved thereby, the Appellant has preferred the present appeal challenging the Order dated 18.11.2025.

5. We have heard the learned counsel for the parties and perused the material placed on record.

6. By way of the Impugned Order, the learned Trial Court, while dismissing the application of the Appellant under Order IX Rule 13 of the CPC, held that the Appellant was duly served with summons through Registered Post on 09.12.2024 as evidenced by the tracking report furnished by the Respondent, which indicated that the Appellant had knowledge of the proceedings, thus no sufficient ground was made out for setting aside of the ex parte decree.

7. The Appellant submits that the alleged service in the present case is purportedly based on “refusal”. However, the report of the postal official is wholly vague and deficient, as it merely records the word “refusal” without specifying the identity of the person to whom the summons were allegedly tendered or who is stated to have refused the same. The Appellant, on affidavit, has stated that no summons were ever tendered to him, and he never refused service of any summons or notice. It is further submitted that the Appellant had no knowledge whatsoever of the date of hearing and was thus prevented by sufficient cause from appearing before the learned Trial Court when the suit was proceeded with ex parte.

8. The question, thus, arises for consideration before this Court is whether service upon the Appellant is sufficient as per law.

9. It is well settled that once the proof of service is rebutted, the burden of proof shifts on the other party to prove the said proof of service with cogent reasons by adducing evidence. In this regard, reference may be made to Parimal v. Veena , (2011) 3 SCC 545, wherein the Supreme Court authoritatively expounded upon the presumption of service of summons and the nature of

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2026 Supreme(Del) 889

Cases Referred (1)