An ex-parte decree should be set aside if it is established that summons were not duly served, particularly when delivery reports are contradictory and the plaintiff fails to prove the correctness of the address used for service.

Order

1. By way of filing the instant civil revision petition, a challenge has been made to the order dated 18.12.2025, whereby the learned trial Court allowed the application moved on behalf of the respondent-defendant under Order IX Rule 13 read with Section 151 CPC for setting aside the ex-parte decree.

2. Shorn of unnecessary details, briefly stated, the facts of the case are that the petitioner-plaintiff filed a suit for specific performance of contract and perpetual injunction before the learned Additional District Judge, Suratgarh.

3. Initially, in the cause title, the address of the respondent-defendant was shown as Village Thukrana, Tehsil Suratgarh, where he was stated to be residing. Attempts were made to serve him, but to no avail. At a subsequent stage, the plaintiff moved an application stating that, as per his information, the respondent-defendant was presently residing somewhere in Vaishali Nagar, Jaipur. Accepting the said application, summons were issued to him at the address furnished by the plaintiff in the application.

4. After expiry of 30 days and non-return of the registered envelope, the learned trial Court apparently drew a presumption under Section 27 of the General Clauses Act and presumed that the respondent-defendant had been duly informed about the issuance of summons. Accordingly, the learned trial Court proceeded ex-parte and decreed the suit vide judgment and decree dated 03.04.2019.

4.1. Thereafter, the respondent-defendant moved an application under Order IX Rule 13 read with Section 151 CPC contending that the summons were never served upon him and that he was not aware either of the filing of the suit or of the ex-parte proceedings initiated by the Court. It was further contended that no proper opportunity of hearing had been afforded to him and, therefore, the ex-parte decree deserved to be set aside.

5. The petitioner-plaintiff filed a reply contending that the defendant was well aware of the filing of the suit. A further contention was raised that the summons had been duly served upon him through registered post, which was evident from the report regarding the envelope.

6. After hearing learned counsel for the parties, the learned trial Court allowed the application filed by the respondent-defendant under Order IX Rule 13 read with Section 151 CPC and consequently set aside the judgment and decree, holding that the defendant had not been properly served. Aggrieved thereby, the instant revision petition has been filed.

7. I have heard learned counsel for the petitioner and gone through the order under challenge as well as the material available on record.

8. Even a bare perusal of the impugned order makes it abundantly clear that the address initially shown by the petitioner-plaintiff in the cause title was that of Village Thukrana, Tehsil Suratgarh. No amendment in the plaint or cause title was ever sought. Merely on the basis of an application moved on behalf of the petitioner-plaintiff stating that the respondent-defendant was presently residing at Vaishali Nagar, Jaipur, the learned trial Court issued summons at the said address through registered post.

9. The learned trial Court observed that, as per the delivery report, there was a remark dated 10.03.2017 showing “delivery of item”, whereas on 11.03.2017 there was a further remark regarding “delivery attempt”. Both these endorsements were apparently contradictory. Drawing a presumption under Section 27 of the General Clauses Act, the learned trial Court had earlier presumed due service upon the respondent-defendant. Howe