Substituted Service Without Strict Compliance of Order V Rule 17 CPC Vitiates Ex-Parte Decree

The Appellant (Defendant No. 4) challenged a Trial Court order dated 01.12.2025, which dismissed his application under Order IX Rule 13 of the CPC to set aside an ex-parte decree.

The underlying suit involved a claim for specific performance regarding property in Rohini, Delhi.

Procedural records showed that summons to the Appellant’s Mumbai address were initially returned with a report that he had "left the premises".

Subsequent reports stated he was "residing at the same premises" but was "coming late and going early," without indicating any attempt at affixation.

Consequently, the Trial Court ordered substituted service by newspaper publication.

The Appellant claimed he was never served and only learned of the decree through a relative, asserting he was not on speaking terms with his co-defendant brothers.

1. Whether the Trial Court's transition to substituted service without complying with the requirements of Order V Rule 17 of the CPC constituted a valid service of summons.

2. Whether the ex-parte decree was liable to be set aside under Order IX Rule 13 of the CPC on grounds of non-service.

The Court applied Order IX Rule 13 of the CPC, which mandates setting aside an ex-parte decree if the defendant was not duly served.

It strictly interpreted Order V Rule 17 of the CPC, which requires the serving officer to use "due and reasonable diligence" and affix a copy of the summons on the outer door of the residence if the defendant cannot be found.

The Court relied on Neerja Realtors Private Limited v. Janglu, emphasizing that substituted service under Order V Rule 20 is a "last resort" and cannot be directed mechanically without satisfaction that the defendant is avoiding service.

It further cited Sushil Kumar Sabharwal v. Gurpreet Singh, holding that the "knowledge of the date of hearing," not just "pendency of the suit," is relevant for the proviso to Order IX Rule 13.

The Court observed a fundamental breach of procedure under Order V Rule 17. It noted that while the process server reported the Appellant was "coming late and going early," the report was silent on the number of attempts made and failed to show that any summons were affixed to the premises as required by law.

The High Court reasoned that substituted service by publication is an exception to the normal mode and requires judicial satisfaction that the defendant is intentionally evading service.

In this case, the Trial Court resorted to publication without fulfilling the antecedent requirements of affixation or diligent inquiry.

The Court rejected the Respondents' argument regarding "irregularity," finding this to be a case of "complete non-service" rather than a mere technical flaw.

It held that the failure to follow the mandatory procedure under Order V Rule 17 invalidated the subsequent substituted service.

The relief was granted subject to the Appellant paying costs of Rs. 25,000 to the Delhi State Legal Services Authority for POCSO victim support. The parties were directed to appear before the Trial Court on 22.05.2026 for further directions.