Notice of Service vs. Summons - In several cases, courts distinguished between serving a notice and serving a summons. The oversight of serving only a notice (not summons) led to ex parte judgments, but courts sometimes refused to vacate these judgments if proper service was not established or if the defendant refused to accept summons. For example, in 2024 Supreme(SRI)(SC) 12820, the court refused to vacate an ex parte decree mainly because mismanagement did not justify default, but noted that if summons were not served, vacating was possible. Similarly, in
GUNERIS & ANOTHER VS. WILLIAM & OTHERS
, failure to lead evidence on proper service resulted in dismissal of vacate applications. ["2024 Supreme(SRI)(SC) 12820"], ["GUNERIS & ANOTHER VS. WILLIAM & OTHERS
"]Refusal to Accept Summons - When defendants refused to accept summons, courts often treated the summons as duly served if such refusal was documented. For instance, in SRI00000064631 and 2025 Supreme(Online)(Kar) 36542, postal endorsements of refusal were accepted as sufficient service, enabling courts to proceed ex parte. Courts emphasized that refusal or deliberate non-acceptance by defendants could justify ex parte proceedings but also recognized that such refusals could be grounds to challenge judgments if service was not properly established. ["SRI00000064631"], ["2025 Supreme(Online)(Kar) 36542"]
Power of Courts to Vacate Ex Parte Orders - Courts generally have the authority to vacate ex parte judgments or orders if proper service was not made, or if there was a procedural error. For example, in
SAYADO MOHAMADO v. MAULA ABUBAHKAR
, the District Judge refused to vacate an ex parte order under section 704, citing limited jurisdiction, but acknowledged that ex parte orders should be vacated if service was not properly effected. The Supreme Court in Attorney-General ["2015"] BLR 33 recognized slip-ups by counsel as grounds for vacating ex parte orders. [SAYADO MOHAMADO v. MAULA ABUBAHKAR
, Attorney-General ["2015"]]Procedural Requirements for Vacating Ex Parte Judgments - Parties seeking to vacate ex parte judgments must generally file an application within a reasonable time, demonstrating proper service or valid grounds such as non-receipt of summons. In 2023 Supreme(SRI)(CA) 355, the court noted that a party should move to vacate the order rather than appeal directly, especially if service was not properly established. Delay or failure to act promptly was often a reason for courts refusing to vacate orders, as seen in
PERERA v. IBRAHIM
. ["2023 Supreme(SRI)(CA) 355"], ["PERERA v. IBRAHIM
"]Legal Principles on Service and Default - Proper service is crucial; if summons are not served or are refused, judgments may be challenged as void or voidable. Courts have held that service by refusal or non-acceptance, documented through endorsements, is sufficient to consider service complete, enabling ex parte proceedings. Conversely, if service is not properly established, judgments can be challenged, or courts may refuse to proceed ex parte. ["2023 Supreme(SRI)(CA) 355"], ["2024 0 Supreme(Raj) 548"]
Analysis and Conclusion:Courts recognize the importance of proper service of summons in civil proceedings. When defendants refuse or deliberately avoid accepting summons, courts often treat service as complete if documented properly, allowing ex parte judgments to stand. However, if service is not properly established—such as only serving notices instead of summons, or if there is evidence of non-receipt—parties can apply to vacate ex parte orders. Courts have jurisdiction to set aside such judgments, but procedural compliance and timeliness are critical. Refusals or errors in service can be grounds for vacating ex parte decrees, emphasizing the need for strict adherence to service procedures to uphold fairness in civil proceedings.
