Land Suit Defendant Can Contest Ex-Parte Decree After P&H HC Finds Munadi Ordered Without Recorded Satisfaction, Summons Returned For Wrong Address

The plaintiff instituted a suit for declaration and permanent injunction on 16 January 2002. Defendant No. 1 was proceeded against ex parte on 4 March 2002, and the suit was decreed ex parte on 9 January 2006.

He applied under Order IX Rule 13 CPC on 11 May 2006, asserting that he had not been duly served and learned of the decree on 1 May 2006.

The trial court dismissed the application, and the appellate court dismissed his appeal.

He challenged both orders under Article 227 of the Constitution.

Order V Rule 20 CPC permits substituted service only where the court is satisfied that the defendant is avoiding service or that summons cannot otherwise be served; that satisfaction must precede the order for substituted service.

Under the second proviso to Order IX Rule 13 CPC, an ex parte decree is not to be set aside merely for an irregularity in service if the defendant had notice of the hearing date and sufficient time to appear and answer the claim.

Article 123 of the Limitation Act, 1963 provides a 30-day period to apply to set aside an ex parte decree; where summons were not duly served, time runs from knowledge of the decree. Its Explanation provides that substituted service under Order V Rule 20 is not deemed due service for Article 123.

In Sushil Kumar Sabharwal v. Gurpreet Singh, (2002) 5 SCC 377, the Supreme Court emphasised that due service and a fair opportunity to contest are essential before an ex parte decree is passed.

Article 227 empowers the High Court to intervene where the lower courts’ findings apply the service requirements erroneously and deny a party an opportunity to contest.

The summons for the petitioner had been returned unserved for want of a correct address, while reports of refusal concerned other defendants; those reports could not be attributed to him.

The order directing Munadi did not record the satisfaction required by Order V Rule 20, and the subsequent Munadi report could not cure that deficiency.

The lower courts also failed to find, on specific evidence, that the petitioner had notice of the hearing date and sufficient time to appear; residence in the same village or general knowledge of the suit was insufficient.

Given the pleaded date of knowledge and the application filed ten days later, the application could not be rejected on limitation merely by treating substituted service as due service.

These errors justified supervisory intervention.

The ex parte judgment and decree were set aside qua defendant No. 1, subject to payment of ₹10,000 in costs to the plaintiff through his legal representatives.

The suit was restored insofar as that defendant was concerned; he was directed to appear, avoid unnecessary adjournments, and cooperate in its expeditious disposal, with the trial court asked to endeavour to conclude the proceedings preferably within one year of receiving the certified order.

The merits of the suit were left open.