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2025 Supreme(Online)(Raj) 14636
HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
Sandeep Taneja, J
Pitambar S/o Shri Kripal Das Maheshwari – Appellant
Versus
Legal representatives of Late Shri Bhoja Mal – Respondent
Civil Misc. Appeal No. 466/1995
For the Appellants/Petitioners: Mr. Prashant Tatia, Mr. Manish Bhunwal, Mr. Rajat Rajpurohit for Mr. Sajjan Singh
For the Respondent(s): Mr. D.L.R. Vyas
Served summons must comply with legal requirements; publication in a weekly newspaper violates defendant's rights under substitute service rules.
Headnote:(A) Code of Civil Procedure - Order 5 Rule 20 - Substituted service of summons - Non-compliance with mandatory requirements of notifying via daily newspaper - The court found that publication in a weekly newspaper constitutes a violation of service requirements. (Paras 6-8)
(B) Appeal - Jurisdiction regarding setting aside ex-parte decrees - The court determined that irregular service of summons does not justify ex-parte decrees where proper protocol was not followed. (Paras 10-11)
Facts of the case:
The appellant challenged the dismissal of his application to set aside ex-parte decrees based on the claim of not receiving proper notice.
Findings of Court:
The summons were improperly published contrary to lawful service methods, leading to a decision to set aside the lower court's orders.
Issues: The court focused on whether the service was valid based on the newspaper used for summons publication.
Ratio Decidendi: The court affirmed that newspaper publication requirements must be strictly adhered to as stipulated by law.
Result: Appeal allowed; ex-parte decree set aside.
| Table of Content |
|---|
| 1. appellant challenges ex-parte decrees. (Para 1 , 2) |
| 2. arguments on notice service inadequacy. (Para 3 , 4) |
| 3. violation of legal requirements in summons publication. (Para 6 , 7 , 8 , 10) |
| 4. legal interpretation of service requirements. (Para 9 , 11) |
| 5. outcome of appeal; ex-parte decree set aside. (Para 12 , 13 , 14 , 15 , 16) |
JUDGMENT
14/08/2025
1. This appeal lays challenge to the order dated 04.08.1995 passed by the learned District Judge, Balotra (for short ‘the Trial Court’) in Civil Misc. Case No.14/94, whereby the application filed by appellant-defendant No.1 under Order 9 Rule 13 of the Code of Civil Procedure (C.P.C.) seeking setting aside of preliminary decree dated 31.05.1991 and final decree dated 06.01.1994 has been rejected.
2. The brief facts of the case are that a suit for settlement of accounts was filed by respondent No.1-plaintiff against the defendants including the appellant. The appellant filed the written statement in defence. However, thereafter due to non-appearance of the appellant, the suit was decreed by ex-parte judgment and decree dated 16.03.1995.
2.1. Aggrieved by the said judgment and decree, the appellant filed a regular first appeal before the Hon’ble High Court and the Hon’ble High Court vide order dated 19.09.1986 set aside the ex- parte judgment and decree and remanded the matter to the learned Trial Court.
2.2 After the remand of the matter by the Hon’ble High Court and consequent restoration to its original number, the learned Trial Court issued notice to the counsel for the appellant, who pleaded “No Instructions”. The learned Trial Court then issued fresh notices to the appellant for 16.12.1986, 05.02.1987, 13.03.1987, 16.04.1987, 12.05.1987, 17.09.1987 and 12.11.1987. However, the notices were received unserved with an endorsement that the appellant did not live at the given address and he had gone to Gujarat.
2.3 In these circumstances, the respondent No.1 filed an application under Order 5 Rule 20 C.P.C. for service of summons on the appellant by substituted service. The said application was allowed and the summons was published in a newspaper i.e. Simant Times on 09.12.1987. Since, the appellant did not appear, the learned Trial Court proceeded ex-parte against the appellant and passed the preliminary decree on 31.05.1991 and final decree on 06.01.1994. The appellant filed an application under Order 9 Rule 13 C.P.C. for setting aside ex-parte judgment and decree, which was dismissed by the learned Trial Court vide impugned order dated 04.08.1995.
3. Learned counsel for the appellant submits that after the matter was remanded by the Hon’ble High Court to the learned Trial Court, the notices were not served upon the appellant. Counsel further submits that the publication of summons in the newspaper has also not been in accordance with the requirements of Order 5 Rule 20 C.P.C. as the newspaper i.e. Simant Times is a weekly newspaper and not a daily newspaper. Learned counsel, therefore, submits that the learned Trial Court fell in error in rejecting the application filed by the appellant seeking setting aside of ex-parte decrees. Learned counsel for the appellant relies upon the following judgments :
(i) Shaitan Singh Vs. UCO Bank reported in 2004(5) WLC
614 (ii) Great Punjab Agro Industries Ltd. vs. Khushian & Ors.
reported in 2005 SCC Online SC 1285 (iii) Abbu Bakar & Anr. Vs. Deen Dayal & Anr. reported in
2006(4) WLC 494 (iv) Iqbal Kaur & Ors. Vs. Jagdish Prasad & Ors. reported in
2013 (2) WLC 494
4. Per contra, learned counsel for the respondent No.1 while supporting the impugned order passed by the learned Trial Court, submits that the appellant was aware of pending proceedings before the learned Trial Court as he himself had filed an appeal before the Hon’ble High Court, by which the ex-parte judgment and decree was set aside and, therefore, the appellant cannot be permitted to put forward the ground of non-service of notices. Counsel further submits that on the ground
