O.V.R.17 CPC Mandatory, Not Directory; High Court Sets Aside Ex-Parte Decree for Non-Compliance Before Paper Publication (H.P. Sandesh, J.) - 2024-11-29

High Court Sets Aside Ex-Parte Decree, Rules Affixture Under Order V Rule 17 CPC Mandatory Before Substituted Service

Bengaluru: In a significant ruling underscoring the procedural safeguards in civil litigation, the High Court, presided over by Justice H.P.Sandesh , has allowed a Miscellaneous First Appeal, setting aside an ex-parte judgment and decree. The Court held that the procedure for affixture of summons under Order V Rule 17 of the Code of Civil Procedure (CPC) is mandatory and must be complied with before resorting to substituted service through paper publication under Order V Rule 20 CPC, if the defendant is not found.

The decision came in an appeal filed against a trial court order which had dismissed the appellant's petition under Order 9 Rule 13 CPC, seeking to set aside an ex-parte decree for Rs. 8,80,000.

Background of the Dispute

The case originated from a suit (O.S.No.25432/2015) where the respondent (original plaintiff) sought recovery of Rs. 8,80,000 from the appellant (original defendant). The trial court issued summons to the appellant, which were returned 'unserved' initially. Subsequent summons sent via Registered Post with Acknowledgement Due (RPAD) were returned with the endorsement 'defendant is not in station'. Following this, the plaintiff sought and was granted permission for substituted service by paper publication under Order V Rule 20 CPC. The appellant was then placed ex-parte, and the trial court proceeded to pass a judgment and decree against him in 2018.

The appellant challenged this ex-parte decree by filing a miscellaneous petition (Misc.No.25012/2022) under Order 9 Rule 13 CPC, arguing improper service of summons. The trial court, however, dismissed this petition, leading to the present Miscellaneous First Appeal before the High Court.

Arguments Before the Court

The appellant's counsel vehemently argued that the trial court erred by not ensuring compliance with the mandatory requirement of Order V Rule 17 CPC. This rule stipulates that if a defendant cannot be found after due diligence, the serving officer must affix a copy of the summons on a conspicuous part of the defendant's residence. It was contended that without first attempting affixture, resorting directly to paper publication under Order V Rule 20 CPC was improper, especially when the summons via RPAD was returned merely as 'out of station' and not as 'refused' or 'evading service'.

Conversely, the respondent's counsel maintained that the appellant had avoided service, justifying the invocation of Order V Rule 20 CPC for paper publication. It was argued that the trial court was satisfied with the reasons for seeking substituted service and had correctly placed the appellant ex-parte.

High Court's Analysis: Order V Rule 17 CPC is Mandatory

Justice H.P.Sandesh meticulously examined the provisions of Order V Rule 17 and Order V Rule 20 CPC. The Court emphasized that these provisions must be read conjointly.

The judgment highlighted a critical lapse:

"When he was not in station and no such information was also given and nothing is mentioned that an intimation was delivered and when such being the case and when no such intimation is given, question of it has come to the notice of appellant/defendant does not arise. Without any notice, he was placed ex-parte and invoked Order V Rule 20 of C.P.C." (Para 18)

The Court noted that the respondent ought to have taken steps for affixture under Order V Rule 17 CPC or sought specific permission for substituted service by affixture when the RPAD notice returned with 'he was not in station'.

Referring to the trial court's reasoning that Order V Rule 17 was merely directory, Justice Sandesh firmly disagreed:

"But the wordings used 'shall' and when the word used is 'shall' the very reasoning given by the trial Court that it is directory not mandatory is a wrong notion of the trial Court and had lost sight of the very proviso of Order V Rule 17 and committed an error in coming to the conclusion that it was only a directory..." (Para 19)

The Court also referred to the Division Bench Judgment in Nova Granites (India) Ltd Vs. Coach Kraft (Bangalore) Pvt. Ltd ILR 1994 KAR 52 , which supports the strict construction of Order V Rule 17 CPC. The trial court, despite noting this judgment, had erroneously concluded that the procedure was directory.

Decision and Implications

Finding merit in the appellant's contentions, the High Court ruled that the trial court had committed an error in dismissing the petition to set aside the ex-parte decree. The Court concluded that there was non-compliance with the mandatory provisions of Order V Rule 17 CPC.

Consequently, the appeal was allowed, and the impugned order of the trial court dismissing the Miscellaneous Petition was set aside. This effectively sets aside the original ex-parte decree passed in O.S.No.25432/2015.

The High Court directed both parties to appear before the trial court on December 20, 2024. The appellant was granted liberty to file his written statement on the date of appearance. Given that the original suit dates back to 2015, the trial court has been directed to dispose of the matter within four months from the date of appearance. Parties and their counsel were urged to assist the trial court in adhering to this timeline.

This judgment reinforces the principle that procedural requirements for service of summons, designed to ensure that a party is duly informed of proceedings against them, must be strictly adhered to. Failure to comply with mandatory steps like affixture, when warranted, can vitiate subsequent ex-parte proceedings.