Mohd Ayyub vs Sahabuddin Through His Lrs. Sherjan And Ors

CR-390-2015 (O&
&M)

IN THE

E HIGH COURT OF PUNJAB AND
HARYANA AT CHANDIGARH


CR-390-2015 (O&M)

Mohd. Ayyub

...Petitioner
Versus
Sahabuddin (d
deceased) through his LR and oth
hers ...Respondents
Reserved on: 28.1
Pronounced on: 31
Pronounced fully/operat
10.2026
1.10.2026
tive part: Fully

ON'BLE MR. JUSTICE DEEPAK G
CORAM: H

Argued by: M
UPTA
Mr. Rajesh Lamba, Advocate for t
he petitioner.
N
one for the respondent - plaintif
ff.


TA, J.
DEEPAK GUPTA
Th
he present revision petition h
as been filed by defendant N
No.1,
invoking the
supervisory jurisdiction of this
s Court under Article 227 of
the
Constitution o
of India, assailing the order dated
d 15.05.2014 (Annexure P-4) pas
ssed
by the learned
d Addl. Civil Judge (Senior Divis
sion), Ferozepur Jhirka, whereby
y his
application un
nder Order IX Rule 13 CPC (Ann
nexure P-2) for setting aside the
e ex
parte order d
dated 04.03.2002 and the ex
parte judgment & decree da
ated
09.01.2006 (A
Annexure P-1) was dismissed. C
Challenge has also been laid to
the
order dated 23
3.12.2014 (Annexure P-6) passe
ed by the learned Additional Dis
trict
Judge, Mewat,
, dismissing the appeal preferred
d against the aforesaid order.
2. B
riefly stated, respondent-plaint
iff Sahabuddin instituted a suit
t for
declaration a
and permanent injunction ag
gainst the petitioner and ot
ther
defendants on
n 16.01.2002. During the pende
ency of the suit, the petitioner
was
proceeded aga
ainst ex parte on 04.03.2002. T
The suit was eventually decreed
d ex
parte on 09.01

1.2006 (Annexure P-1).
3. Th
he petitioner moved an applicat
tion under Order IX Rule 13 CPC
C on
11.05.2006, s
eeking setting aside of the a
aforesaid ex parte order, bes
sides
judgment and
d decree. His main contention
was that he had never been d
duly
served with th
he summons of the suit and had
d no knowledge of the proceedi
ngs.
YOGESH MEHTA
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integrity of this document
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CR-390-2015 (O&
&M)

According to
him, the reports of the Proce
ess Server were incorrect and
the
plaintiff had p
procured the ex parte decree b
by concealing material facts. It
was
further pleade
ed that he acquired knowledge
of the decree on 01.05.2006, w
when
he approache
d the office of the Patwari Ha
alqa for obtaining revenue reco
ords
concerning his

s land.
4. Th
he application was contested by
y the plaintiff, who maintained
that
the petitioner
r had knowledge of the suit pro
oceedings but deliberately avoi
ided
appearance. It
t was asserted that service had
been effected through the pro
cess
prescribed by
law and that no sufficient gro
ound existed for setting aside
the
decree.
5. Th
he learned trial Court framed i
ssues regarding the maintainab
bility
of the applica
ation, limitation and entitlemen
nt of the petitioner to have the
e ex
parte decree s
set aside. Both sides were afford
ded opportunities to lead evide
nce.
The petitioner
r examined himself as AW1 and
d produced documentary evide
nce,
including the c
copy of the relevant revenue mu
utation. The plaintiff examined S
Sher
Jung as RW1
1. Upon appreciation of the e
evidence, the learned trial C
ourt
dismissed the
application on 15.05.2014 (Ann
exure P-4). The appeal preferre
d by
the petitioner
r was also dismissed by the le
arned Additional District Judge
e on
23.12.2014 (An
nnexure P-6).
6. A
ssailing the above orders, le
arned counsel for the petitio
oner
submits that
both Courts below have fa
ailed to appreciate the mate
erial
irregularities i
in the service of summons. It
is specifically contended that
the
summons issu
ed to the petitioner were neve
er returned with a report of refu
usal.
Rather, the r
eport concerning him was tha
at his address was incorrect.
The
reports of ref
fusal related to other defenda
ants. Despite this, the trial C
ourt
directed serv
vice through Munadi with
hout recording the satisfac
ction
contemplated
under Order V Rule 20 CPC. It i
is further submitted that the re
port
of alleged Mu
unadi was not proved by exami
ning the concerned Process Se
rver
and that the p
etitioner was wrongly proceede
ed against ex parte.
7. Le
earned counsel further con
tends that the petitioner
had
approached th
he Court within ten days of acqu
uiring knowledge of the decree
and
that the Court
ts below erroneously treated h
is alleged knowledge of the sui
it as
YOGESH MEHTA
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integrity of this document
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CR-390-2015 (O&
&M)

sufficient to d
defeat the application. It is arg
gued that the requirements of
due
service cannot
t be dispensed with merely on t
the assumption that the petitio
oner,
being a residen
nt of the same village, must hav
ve known about the proceedings
.
8. D
espite service, none has appea
ared on behalf of the respond
ent-
plaintiff to con
ntest the revision petition.
9. Th
he matter is, therefore, bein
ng decided after hearing lear
rned
counsel for the
e petitioner and examining the a

available record.
sis and Findings
Court's Analys
10. Th
he primary question requirin
ng consideration is whether
the
petitioner was
s duly served with the summons
s of the suit and, if not, whether
r the
circumstances
s established on record justified
d rejection of his application un
nder
Order IX Rule 1
13 CPC.
11. Th
he order dated 31.01.2002, rep
roduced in the grounds of revis
sion,
is important.
It records that notices issued t
o defendants No.2 to 6 and 8
had
been received
d back with reports of refusa
al, whereas the notices issued
d to
defendants No
o.1 and 7 had been returned w
with reports unserved for wan
nt of
their correct
addresses. The trial Court n
nevertheless directed that all
the
defendants be
e summoned through Munadi fo
r 04.03.2002.
12. Th
hus, there was no report of re
fusal of summons qua the pres
sent
petitioner, wh
o was defendant No.1 in the sui
it. The reports of refusal concer
ning
other defenda
ants could not have been att
ributed to him. The distinctio
n is
material becau
use refusal of summons and ret
turn of summons on account o
of an
incorrect addr
ess stand on entirely different fo
ootings.
13. O
Order V Rule 20 CPC permits sub
bstituted service, where the Cou
urt is
satisfied that t
the defendant is keeping out of t
the way to avoid service or that
, for
any other rea
ason, summons cannot be serv
ved in the ordinary manner. S
Such
satisfaction m
ust precede the order directing
g substituted service. The provi
sion
does not conte
emplate resort to substituted se
ervice as a matter of routine me
erely
because an ea
rlier attempt at service has been

n unsuccessful.
14. In
n the present case, the order d
dated 31.01.2002 does not disc
close
any satisfactio
on that the petitioner was de
liberately avoiding service or
that
YOGESH MEHTA
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integrity of this document
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CR-390-2015 (O&
&M)

service upon h
him could not otherwise be eff
fected in the ordinary manner.
. No
attempt to asc
certain his correct address is re
flected in the said order. Instea
ad, a
common dire
ection for service through Mu
unadi was issued against all
the
defendants, no
otwithstanding the materially d
different reports concerning ser
rvice

upon them.
15. Th
he Courts below have placed co
nsiderable reliance upon the re
port
of Munadi da
ated 22.02.2002. The learned t
trial Court noticed that the re
port
recorded the
presence of certain persons of
the village and concluded that
the
petitioner had
d been duly served. The appella
ate Court also relied upon the
said
report and ob
bserved that service through M
Munadi was an accepted mode
e of

service.
16. H
owever, the question was n
not whether Munadi is a leg
gally
recognised mo
ode of substituted service. The
relevant question was whether
r the
conditions jus
stifying recourse to such servi
ce had been satisfied in the
first
instance. A re
eport that Munadi was subsequ
uently carried out cannot, by it
self,
cure the absen
nce of the requisite judicial satis
sfaction before ordering substitu
uted
service.
17. It
is also important to note that
the report dated 22.02.2002 is
not
available in t
the paper-book of the presen
nt revision petition. The find
ings
recorded by t
the Courts below regarding it
ts contents have, therefore, b
been
considered on
the basis of the impugned orde
ers. Even accepting that Munadi
was
conducted in
the manner noticed by the
e Courts below, the foundatio
onal
requirement o
of a legally sustainable order di
recting substituted service rem
ains
to be examine
ed. The impugned orders do not
satisfactorily address this aspec
t.
18. Th
he learned trial Court has also
relied upon the testimony of S
Sher
Jung (RW1) an
nd the circumstance that the p
petitioner was residing in the sa
ame
village. The ap
ppellate Court concurred with
the conclusion that the petitio
oner
had knowledg
ge of the proceedings. However
, mere residence in the village
or a
general asser
tion that the defendant knew
w about the litigation cannot
t be
equated with d
due service of summons.
19. Th
he second proviso to Order IX
X Rule 13 CPC provides that an
n ex
parte decree s
shall not be set aside merely on
the ground of an irregularity in
the
YOGESH MEHTA
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integrity of this document
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CR-390-2015 (O&
&M)

service of sum
mmons, if the Court is satisfied th
hat the defendant had notice of
f the
date of hearin
ng and sufficient time to appea
ar and answer the plaintiff's cla
aim.
The requirem
ment is, therefore, not merely
y knowledge of the existence
e or
pendency of li
itigation, but notice of the date
e of hearing coupled with suffic
cient
opportunity to

o contest.
20. In
n the present case, neither C
Court below has recorded a c
clear
finding, found
ded upon specific evidence, tha
at the petitioner had notice of
the
date of hearin
ng on which he was proceeded a
against ex parte and sufficient t
time
to appear and
d answer the plaintiff's claim.
The findings regarding his alle
eged
knowledge of
the suit have been treated as
s sufficient without examining
the
distinct statuto
ory requirements of the aforesa

id proviso.
21. Th
he learned trial Court also obs
served that the petitioner had
not
examined any
y independent witness to esta
blish that he was unaware of
the
proceedings.
Such reasoning overlooks th
he fact that the petitioner
had
specifically ch
hallenged the validity of se
rvice. Once the service rep
ports
themselves di
sclosed that the summons issu
ued to him had not been retur
rned
with a report
t of refusal, the legality of th
he subsequent substituted ser
rvice
required prope
er scrutiny. The burden could no
ot be discharged merely by draw
wing
an adverse inf
erence from the petitioner's fail
lure to prove a negative fact.
urpreet Singh , (2002) 5 SCC 377 ,
22. In
n Sushil Kumar Sabharwal v. Gu
the
Hon'ble Supre
eme Court emphasised the impo
ortance of due service of summ
mons
and the oppo
ortunity of a defendant to cont
test the proceedings before an
n ex
parte decree
is passed. The procedural re
equirements governing service
are
intended to se
ecure a fair opportunity of hearin
ng and cannot be reduced to em
mpty

formalities.
23. A
s far as the question of limitati
on is concerned, Article 123 of
f the
Limitation Act
t, 1963 provides a period of th
hirty days for an application to
o set
aside an ex pa
arte decree, commencing from
m the date of the decree or, wh
here
summons we
ere not duly served, from th
he date when the applicant
had
knowledge of
the decree. The Explanation to A
Article 123 specifically provides
that
substituted se
ervice under Order V Rule 20 C
PC shall not be deemed to be
due
service for the

e purposes of the said Article.
YOGESH MEHTA
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CR-390-2015 (O&
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24. Th
he petitioner pleaded that he ac
cquired knowledge of the decree
e on
01.05.2006 an
nd moved the application on
11.05.2006. Although the Co
ourts
below have d
doubted his assertion concern
ing the date of knowledge, t
their
conclusions ar
re substantially founded upon t
he presumed validity of the ser
rvice
through Muna
adi and the alleged knowledg
ge of the suit. Knowledge of
the
pendency of t
he suit cannot, without further
evidence, be treated as knowle
edge
of the decree
itself. The application, therefor
re, could not have been rejected
d on
limitation me
rely by treating the substitute
ed service as due service for
the
purposes of Ar
rticle 123.
25. It
is also relevant that the petitio
oner approached the Court with
hin a
few months o
of the passing of the ex parte
decree and thereafter pursued
d his
remedy throu
ugh the proceedings culminat
ting in the present revision.
The
question is n
ot whether the petitioner ha
as established a defence likely
y to
succeed in the
e suit, but whether he was depr
rived of an effective opportunit
ty to
contest the cla
aim on account of the manner in
n which service was effected.
26. Th
he Courts below have thus fa
ailed to appreciate the distinc
ction
between the
reports of refusal concerning
other defendants and the re
port
concerning the
e petitioner, the requirement of
f judicial satisfaction under Ord
er V
Rule 20 CPC, a
and the statutory distinction be
etween knowledge of litigation
and
notice of the
date of hearing. These are no
ot merely errors in appreciatio
n of
evidence but e
errors affecting the application o
of the governing legal principles.
.
27. O
Ordinarily, this Court would be
slow to interfere with concur
rent
findings recor
ded by the Courts below in pr
roceedings under Order IX Rule
e 13
CPC. However
r, where such findings proceed
upon an erroneous applicatio
n of
the statutory r
requirements governing service
of summons and result in denia
al of
an opportunit
ty to contest a civil suit, inter
rference under Article 227 of
the
Constitution is
s justified.
28. In
n the present case, the litigatio
n relates to a suit instituted in
the
year 2002. The
e application under Order IX Ru
le 13 CPC was filed in 2006 and
has
remained the
e subject matter of proceed
dings for a considerable per
riod.
Remanding th
he application for fresh consi
deration would only prolong
the
controversy w
without serving any substantial
l purpose. The interests of jus
stice
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CR-390-2015 (O&
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would be bett
er served by permitting the peti
tioner to contest the suit on me
erits,
subject to app
ropriate conditions.
29. Co
onsequently, the present revis
sion petition is allowed. The o
rder
dated 15.05.20
014 (Annexure P-4) passed by t
he learned Addl. Civil Judge (Se
enior
Division), Fero
ozepur Jhirka, and the order
dated 23.12.2014 (Annexure
P-6)
passed by the
learned Additional District Judg
e, Mewat, are hereby set aside.
The
application un
der Order IX Rule 13 CPC is allow
wed and the ex parte judgment
and
decree dated
09.01.2006 (Annexure P-1) a
are set aside qua the petitio
ner-
defendant No
.1, subject to payment of cost
ts of ₹10,000/- to the respond
ent-
plaintiff throug
gh his legal representatives.
30. Th
he suit shall stand restored t
to its original number for furt
ther
proceedings in
n accordance with law, insofar
as the petitioner is concerned.
The
petitioner sha
ll appear before the learned tr
rial Court on a date to be fixed
d by
that Court upo
on receipt of a copy of this ord
der. He shall not seek unneces
sary
adjournments
and shall cooperate in the ex
xpeditious disposal of the suit.
The
learned trial C
Court shall endeavour to conclud
de the proceedings as expeditio
ously
as possible, p
referably within one year from
m the date of receipt of a certi
ified
copy of this or

rder.
31. It
is clarified that nothing observ
ved herein shall be construed a
s an
expression of
opinion on the merits of the
e rival claims concerning the
suit
property. All s
such questions shall be determ
ined independently on the basi
is of
the evidence a
and in accordance with law.
32. Pe
ending miscellaneous applicat
tion(s), if any, shall also st
tand
disposed of.

31.10.2026


(DEEPAK GUPTA)
JUDGE
Yogesh

Whether
Whether

Uploaded on: 3
r speaking/reasoned: Ye
r reportable: Ye
es/No
es/No
1.10.2026

YOGESH MEHTA
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integrity of this document
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