Woman’s Only Home At Stake, P&H HC Reopens Suit To Enforce Sale, Setting Aside Ex-Parte Decree Over Doubts About Summons Service

The respondent-plaintiff sued for specific performance of an agreement to sell a house and obtained an ex parte decree after the petitioner-defendant was proceeded against ex parte.

The defendant applied under Order IX Rule 13 CPC, asserting that she had not been served and alleging fraud in the agreement; the trial court dismissed her application, and the appellate court affirmed that dismissal.

In the revision, the parties disputed whether summons had been duly served. The process servers had died and could not be examined; the plaintiff relied on the summons, service reports, substituted-service proceedings and testimony from a witness associated with him and the alleged agreement.

Order V Rules 17–19 CPC prescribe requirements for affixation when a defendant cannot be found or refuses service, the endorsement of the time and manner of service, and the court’s examination or further inquiry into a return of non-service or refusal.

Under Order IX Rule 13 CPC, an ex parte decree may be set aside where the defendant was not duly served.

Article 227 of the Constitution provides the High Court’s supervisory jurisdiction, which the Court exercised to review the impugned orders.

The Court also relied on Robin Thapa v. Rohit Dora, 2019 INSC 731, for the principle that, as far as possible, disputes should be decided on their merits.

The Court found that the service evidence did not reliably establish due service. The witness who identified a signature on the summons was closely associated with the plaintiff and had also testified in support of the alleged agreement; his evidence lacked independent corroboration.

The plaintiff had not accompanied the process server, no person from the defendant’s locality had signed the service report, and the evidence concerning substituted service did not satisfactorily establish that the defendant’s address had been identified or that service was properly effected.

The process-server reports also did not record affixation, a relevant procedural omission under Order V Rule 17 CPC; the Court held that producing the original reports did not remove the need for judicial scrutiny.

Considering these circumstances cumulatively, the Court held that due service had not been established and that the defendant should have an opportunity to contest the suit, particularly given the residential property rights at stake.

It directed restoration of the suit to its original number for proceedings from the stage at which the defendant was proceeded against ex parte, without expressing any opinion on the merits of the agreement to sell; the trial court was asked to endeavour to conclude the matter preferably within one year.