Courts must examine process server before accepting refusal of summons: Raj HC

Jaipur: The Rajasthan High Court has held that courts must strictly comply with the mandatory procedure prescribed under the Code of Civil Procedure before proceeding ex-parte against a litigant, ruling that acceptance of a summons refusal report is a serious judicial act and not a mere formality.

Justice Anoop Kumar Dhand held that when an ex-parte decree is sought to be passed on the basis of alleged refusal of summons, the trial court is duty-bound to examine the process server, and where necessary, the affixation witnesses, in accordance with Order V Rules 17 and 19 CPC. Failure to do so vitiates the proceedings and violates principles of natural justice.

The court observed that service of summons is intended to ensure that a party is made aware of legal proceedings and given a fair opportunity to contest the case. Proceeding ex-parte without proper proof of service results in decisions being taken behind the back of the affected party, which the law does not countenance.

Applying this settled legal position, the High Court allowed a civil miscellaneous appeal challenging the rejection of an application filed under Order IX Rule 13 CPC seeking to set aside an ex-parte judgment and decree passed in a suit for cancellation of a registered sale deed.

The appeal was filed by Devkrishna and two others against an order of the Additional District Judge No.4, Jaipur, who had refused to set aside an ex-parte decree dated December 23, 2011.

According to the record, notices in the suit were issued in March 2008, following which the process server reported that the defendants had refused to accept service. On the basis of this report, the trial court proceeded ex-parte and eventually decreed the suit. The defendants later contended that they had no knowledge of the proceedings and that the refusal report was unreliable.

The High Court noted that the refusal report bore signatures of two witnesses who were not residents of the locality where the defendants resided, casting doubt on their presence at the time of alleged affixation of summons. The court further noted that neither the process server nor the witnesses were examined by the trial court before proceeding ex-parte.

The court also took into account that a parallel suit involving another sale deed between the same parties had been dismissed by a civil court and that the ex-parte decree in the present case had not been disclosed to the defendants during appellate proceedings in the connected matter.

Holding that proof of valid service is an essential precondition for proceeding ex-parte, the High Court found the trial court’s approach to be legally unsustainable. It ruled that the rejection of the application under Order IX Rule 13 CPC was based on erroneous assumptions and could not be upheld.

Accordingly, the High Court set aside the impugned order dated April 9, 2019, as well as the ex-parte judgment and decree dated December 23, 2011. The application for setting aside the ex-parte decree was allowed, subject to conditions including payment of costs of Rs.25,000 and plantation of 25 shade-bearing trees in a public area.

The matter has been remitted to the trial court for fresh adjudication on merits, with directions to expedite the proceedings and avoid unnecessary adjournments, considering that the dispute dates back to 2010.

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Case Title
Devkrishna & Others vs Kaluram & Others
S.B. Civil Miscellaneous Appeal No. 5868/2019

Court
High Court of Judicature for Rajasthan, Bench at Jaipur

Bench
Justice Anoop Kumar Dhand

Advocates
For the appellants: Mr. Himanshu Sogani
For the respondents: Mr. J.P. Goyal, Senior Advocate, with Mr. Abhi Goyal, Mr. Ronak Bansal and Ms. Jyoti Swami