Isabella Mariam

The High Court of Himachal Pradesh Single Bench of Justice Satyen Vaidya quashed the order passed by the trial court allowing the setting aside of an ex parte decree. The Court held that the findings recorded by the learned trial court "cannot be sustained being result of failure to exercise jurisdiction in accordance with law." It directed that the trial court's order dated 19.03.2022 in CMA No.507/2017 be set aside, and the applications under Order 9 Rule 13 of the Civil Procedure Code (CPC) and Section 5 of the Limitation Act be dismissed.

The matter arose from a civil suit (Civil Suit No. 632 of 2014) filed by the petitioner, who was the plaintiff in the trial court, seeking a decree of Rs.20,00,000/- with interest against the defendants. On 17.04.2015, the defendants were proceeded against ex parte, and an ex parte decree was passed on 12.06.2017 in favour of the plaintiff.

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Subsequently, on 01.11.2017, the defendants filed applications under Order 9 Rule 13 of CPC and Section 5 of the Limitation Act, praying for setting aside of the ex parte decree and condonation of delay. According to the defendants, they were never served with any court process in Civil Suit No. 632 of 2014. They asserted that they became aware of the suit and the decree only on 27.10.2017 and 30.10.2017. They then obtained certified copies and filed the requisite applications.

It was alleged by the defendants that summons was falsely reported to have been served by affixation on 27.03.2015 and that the process server's report was not truthful. The trial court, after considering the applications and evidence, allowed the applications for setting aside the ex parte decree and condoning the delay.

In support of their claim, the defendants examined three company officials—Alok Malhotra (Director), Satish Singh (General Manager), and Vikram Rathore (Manager Administration)—as AW-1 to AW-3. They stated on affidavit that the company office was located at Village Kalhuien, P.O. Bairagarh, Tehsil Churah, District Chamba, H.P., and no summons or notices were ever received. According to them, the plaintiff procured the ex parte decree by submitting a false report from the Process Server.

In cross-examination, AW-1 Alok Malhotra admitted visiting the office once or twice a year, while AW-2 Satish Singh and AW-3 were permanently stationed there. It was also admitted that security guards and other employees were posted at the site, and that the company had two panel lawyers handling court matters.

The plaintiff, Devi Dass, examined himself as RW-1 and supported his case. Narinder Kumar, the Process Server who served the summons on 27.03.2015, was examined as RW-3. He described the affixation process and produced his reports (Ext. RW-3/B and RW-3/C), stating that the summons was affixed in the presence of an employee named Kuldip, who refused to sign as a witness.

Another Process Server, Dev Raj (RW-4), testified about his earlier attempt on 19.03.2015 to serve the summons, which was unsuccessful. RW-3 in cross-examination stated that he noted Kuldip's name from his uniform nameplate and admitted that he affixed the summons on the main gate of the office.

The original records showed that summons were attempted first on 19.03.2015 and later affixed on 27.03.2015. RW-3 verified his reports on oath, which were further verified by the Court Superintendent. On the basis of these reports, the trial court had proceeded ex parte against the defendants on 17.04.2015.

Justice Satyen Vaidya stated, "The evidence on record does not suggest that the report Ext.RW-3/B and Ext. RW-3/C were false and not based on correct facts. It is a report submitted by a public servant in discharge of his official duties." He recorded that "except for a bald assertion by AW-1 and AW-2 that report was procured, nothing tangible has been placed on record from which such an inference may be drawn."

The Court noted that the requirements of Order 5 Rule 17 CPC, concerning service by affixation, had been satisfied. "The requirement of Rule 17 of Order 5 stands satisfied in the case," Justice Vaidya recorded.

With respect to compliance under Order 5 Rule 19 CPC, the Court found, "the report of serving officer was verified, it was not mandatory for the Court to have examined the serving officer or to hold any other further inquiry. The absence at the most can be construed as an irregularity."

Referring to Order 9 Rule 13 CPC, Justice Vaidya stated that "exparte decree can be set-aside if the applicant satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing." The Court held that "the second proviso appended to Rule 13 of Order 9 of the Code carves out an exception that no Court shall set-aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear."

Further, Justice Vaidya stated, "it is hard to assume that no one had come to know about the fact of such affixation or the filing of the suit," considering that AW-2 and AW-3 were permanently stationed at the office, and the affixation was made on 27.03.2015, providing sufficient time before the hearing on 17.04.2015.

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"The findings recorded by learned trial Court cannot be sustained being result of failure to exercise jurisdiction in accordance with law," the Court held. It was further recorded that "findings recorded by learned trial court are not borne from the material on record."

Justice Satyen Vaidya directed, "In result, the petition is allowed and order dated 19.03.2022 passed by learned Senior Civil Judge, Chamba, District Chamba, H.P. in CMA No.507/2017 is set-aside and the applications of the defendants under Order 9 Rule 13 of CPC and under Section 5 of the Limitation Act are dismissed."

The Court also ordered, "The petition stands disposed of in above terms, so also the pending miscellaneous application(s) if any."

Advocates Representing the Parties:

For the Petitioners: Mr. Sanjeev Bhushan, Senior Advocate, with Mr. Sparsh Bhushan, Advocate

For the Respondents: Mr. Vikas Chauhan, Advocate

Case Title: Devi Dass vs. M/s Ginni Global Pvt. Ltd. and another

Neutral Citation: 2025: HHC:20743

Case Number: CMPMO No. 305 of 2022

Bench: Justice Satyen Vaidya