Holding

The ex‑parte decree was set aside because the summons was not properly served, constituting non‑service rather than a mere irregularity.

Summary

The Supreme Court examined a landlord‑tenant suit where the landlord obtained an ex‑parte decree for rent arrears and eviction. The tenant contended that he never received a summons because the process server’s report was unreliable and he testified under oath that no summons was served. The Court evaluated the requirements of Order 5 Rules 17‑18 for service when a defendant refuses to accept summons, and the second proviso of Order 9 Rule 13 which permits setting aside an ex‑parte decree only when the defendant had notice of the hearing date. Finding that the summons was not properly served and that the tenant’s oath outweighed the server’s uncorroborated claim, the Court held that the decree was void. Consequently, the ex‑parte decree dated 9 Oct 1993 was set aside and the suit remitted to the trial court for fresh hearing. The decision emphasized the court’s duty to ensure proper service before proceeding ex‑parte.

Issues considered

Whether the summons was duly served on the tenant in accordance with Order 5 Rules 17 and 18 of the CPC.
Whether the ex‑parte decree can be set aside under the second proviso of Order 9 Rule 13 of the CPC when the defendant had no notice of the hearing date.

Legislation cited

Code of Civil Procedure, 1908s. Order 5 Rule 17, s. Order 5 Rule 18, s. Order 9 Rule 13 (second proviso), s. Order 9 Rule 6

Subjects

ex‑parte decreeservice of summonsOrder 9 Rule 13landlord‑tenantevictionCivil Procedure Codenon‑servicesetting aside decree

Judgment

...

A SUSHIL KUMAR SABHARWAL
v.
GU RPREET SINGH AND ORS.

APRIL 23, 2002

B [R.C. LAHOTI AND B.N. AGRAWAL, JJ.]

Code of Civil Procedure, 1908:

Order 9, Rule 13, second proviso-Suit for recovery of arrears of rent
C andfor eviction of tenant-Ex-Parte decree-Application for setting aside ex-
parte decree-Tenant stating on oath that no summons was tendered to him-
Process server stating that he tendered summons to-tenant a day prior to date
of hearing but latter refused to accept the same-Held, it is a case of oath
against oath-Oath of tenant was more weighty than that ofprocess server-
D Besides, procedure ofservice as laid down in Order 5, Rules 17 and 18 not
followed-It is not a case of mere irregularity in service of summons, but a
case of non-service of summons-Landlord's contention that tenant had
knowledge of the proceedings is of no avial-Jt is the knowledge of the 'date
of hearing' and not the knowledge of 'pendency of suit' which is relevant for
purpose of the second provso to Order 9, Rule 13-As summons was not
E served on tenant, he did not have opportunity of appearing in court and
contesting the suit-Trial court and High Court erred in law, resulting in
failure ofjustice, by refusing to set aside the ex-parte decree-Ex-parte decree
set aside-Trial court to proceed with the hearing of the suit in accordance
with law.
F Order 9, Rule 6-Suit-Ex-parte hearing-Held, the provision casts an
obligation on the court and simultaneously invokes a call to the conscience of
the court to feel satisfied in the sense of being 'proved' that the summons was
duly served when and when alone, the court is conferred with a discretion to
make an order that the suit be heard ex-parte-The date appointedfor hearing
G in the suit for which the defendant is summoned to appear is a significant date
of hearing requiring a conscious application of mind on the part of the court
to satisfy itself on the service ofsummons-Any default or casual approach on
the part of the court may result in depriving a person of his valuable right to
participate in the hearing and may result in a defendant suffering an ex-parte
decree or proceedings in the suit wherein he was deprived of hearing for no
H 352
-
• -<'
S.K. SABHARWAL v. GURPREET SINGH 353
fault of his-If only the trial court would have been conscious of its obligation
cast on it by Order 9 Rule 6, the case would not have proceeded ex-parte
A
against the defendant-Appel/ant and a .wasteful period of over eight years
would not have been added to the life of this litigation-Ex-parte decree set
aside.

Order 5, Rules 17 and 18--Service ofsummons-Process server reporting B
that he tendered summons to tenant who refused to accept the same-No
.. "' evidence that on such refusal process server affixed copy ofplaint and summons
on wall of premises-Nor signatures of two witnesses obtained-Trial court
decreeing suit against tenant ex-parte-He/d, it is the case of non-service and
not mere irregularity in service of summons.
c
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5111 of
2000.

From the Judgment and Order dated 2.2.2000 of the Punjab and Haryana
High Court in C.R. No. 3783 of 1999.
D

- ~ K.T.S. Tulsi, R.C. Mishra, Dr. Meera Agarwal and Rishi Malhotra for
the Appellants.

P.N. Puri for the Respondents.

The following Order of the Court was delivered : E
This is a landlord-tenant litigation. The tenant is aggrieved by an ex-
parte decree dated 9.10.1993 for recovery of arrears ofrent and eviction from
the suit premises bearing plot No. 9, Chowk Shakti Nagar, Amritsar where
the tenant carries on his business of selling shoes. An application under F
Order 9, Rule 13 of the C.P.C. seeking setting aside of the ex-parte decree
was filed which was opposed, enquired into and rejected by the Trial Court.
The Civil Revision preferred by the tenant met with the same fate. The tenant
has filed this appeal by Special Leave.

A perusal of the record of proceedings shows that the process server G
was entrusted with summons for service on the defendant-tenant. The date of
hearing appointed was 23.2.1993. According to the process server, Narinder
Jeet Singh, he went to the shop of the tenant-appellant on 22.2.1993 and
tendered to him the summons accompanied by a copy of the plaint. The
tenant refused to accept the summons. Then, he returned the summons
alongwith an endorsement of refusal on the back of summons to the Court H
354 SUPREME COURT REPORTS [2002] 3 S.C.R.

A on 23.2.1993. On 23.2.1993, the Court recorded default in appearance of the
defendant-tenant and proceeded ex-parte resulting into the ex-parte decree
dated 9.10.1993.

The singular issue which arises for determination in the case is whether
the defendant-tenant can be said to have been properly served in the manner
B contemplated by the Code of Civil Procedure?

Before we proceed to notice the relevant provisions of law, it will be
relevant to state what was endorsed by the process server on the back of the
summons and what was deposed to by him in the court when he was examined
C in the court as a witness for the landlord-respondent.

The endorsement made by the process server reads as under:

"REPORT OF PROCESS SERVER

Sir,
D
I visited Sushil Kumar Sabharwal Clo Sabharwal Shoes, House
9. He met me on the spot present. But he refused to accept the
summons, Copy of the plaint alongwith summons is returned to the
Court. • •
,E Report submitted accordingly.
Sd/-
Narinder Jeet Singh
Dated : 22.2.93
Translation from Punjabi to English.
F Attested to the true.

(Rajesh Bhandari)

Note : No witness available on the spot.

Refusal - 23.2.1993"
G
The facts deposed to by Narinder jeet Singh, Process Server in the
court show his having tendered the summons alongwith the copy of the plaint ~ _,,,.
to the defendant and thereupon, the defendant's refusal to accept the saine.
He affirmed the endorsement made by him on the back of the summons.
H However, he proceeded to state "if the person refuses to accept the same, a
S.K. SABHARWAL v. GURPREET SINGH 355
-+ copy of the summons and copy of the application be pasted on the wall of A
the said shop". His deposition runs counter to his own endorsement made on
the back of the summons, according to which, on refusal by the defendant to

- accept the summons "copy of the plaint alongwith summons" was returned
to the Court.

Rules 17 and 18 of Order 5, C.P.C. which lay down the procedure of B
service when the defendant refuses to accept service and the endorsement to
• be made by the serving officer, read thus:

•' "17. Procedure when defendant refuses to accept service, or cannot
be bound.-Where the defendant or his agent or such other person
as aforesaid refuses to sign the acknowledgment, or where the serving c
officer, after using all due and reasonable diligence, cannot find the
defendant {who is absent from his residence at the time when service
is sought to be effected on him at his residence and there is no
likelihood of his being found at the residence within a reasonable
time} and there is no agent empowered to accept service of the D
summons on his behalf, nor any other person on whom service can
be made, the serving officer shall affix a copy of the summons on the
>
.a· outer door of some other conspicuous part of the house in which the
• defendant ordinarily reside or carries on business or personally works
for gain, and shall then return the original to the Court from which
it was issued, with a report endorsed thereon or annexed thereto E
stating that he has so affixed the copy, the circumstances under
which he did. so, and the name and address of the person (if any) by
whom the house was identified and in whose presence the copy was
affixed.

..... ~ 18. Endorsement of time and manner of service.-The serving F
officer shall, in all cases in which the summons has been served
under Rule 16, endorse or annex, or cause to be endorsed or annexed,
on or to the original summons, a return stating the time when and the
manner in which the summons was served, and the name and address
of the person (if any) identifying the person served and witnessing G
the delivery or tender of the summons.

We find several infirmities and lapses on the part of the process server.
Firstly, on the alleged refusal by the defendant either he did not affix a copy
of the summons and the plaint on the wall of the shop or if he claims to have
done so, then the endorsement made by him on the back of the summons H
•
356 SUPREME COURT REPORTS [2002] 3 S.C.R.

A does not support him, rather contradicts him. Secondly, the tendering of the
summons, its refusal and affixation of the summons and copy of the plaint
on the wall should have been witnessed by persons who identified the
defendant and his shop and witnessed such procedure. The endorsement shows
that there were no witnesses available on the spot. The correctness of such ..
endorsement is difficult to believe even prima facie. The tenant runs a shoe
B shop in the suit premises. Apparently, the shop will be situated in a locality
where there are other shops and houses. One can understand refusal by
unwilling persons requested by the process wherever to witness the proceedings
.
and be a party to the procedure of the service of summons but to say that
there were no witnesses available on the spot is a statement which can be
C accepted only with a pinch of salt. Incidently, we may state that though the
date of appearance was 23rd February, 1993 the summons is said to have
been tendered on 22ncl February, 1993, i.e., just a day before the date of
hearing.

The appellant has himself appeared in the witness box and deposed on
D oath that no summons was tendered to him by any process server of the
Court. It is a case of oath against oath. In view of the facts which we have
noticed here-in-above clearly the oath of the appellant was more weighty
than the oath of the process server. In the ordinary course of events, the court
of facts should have discarded the statement of the process server and believed
E the statement of the appellant.

The learned counsel for the landlord-respondent submitted that there is
an interpleader suit filed by the appellant because there was a dispute between
the heirs of the original landlord who unfortunately died and his widow and
the grandsons (who are the respondents herein), each of the two was claiming
F itself to be the landlord and entitled to recover rent setting up a will in its
favour. The appellant has admitted in the plaint therein that he was aware of
the pendency of the suit filed by the respondent in the court of the Rent
Controller, Amritsar. In fact, this admission of the appellant has weighed
heavily with the High Court which has opined that even if the summons was
not duly served, the appellant was aware of the pendency of the suit and,
G therefore, the application under Order 9, Rule 13 C.P.C. did not have any
merit.

The High Court has over looked the second proviso to Rule 13 of
Order 9 C.P.C., added by the 1976 Amendment which provides that no court
shall set aside a decree passed ex-parte merely on the ground that there has
H been an irregularity in the service of summons if it is satisfied that the

•
S.K. SABHARWAL v. GURPREET SINGH 357
defendant had notice of the date of hearing and had sufficient time to appear A
and answer the plaintiffs claim. It is the knowledge of the 'date of hearing'
and not the knowledge of 'pendency of suit' which is relevant for the purpose
of the proviso above said. Then the present one is not a case of mere
irregularity in service of summons; on the facts is a case of non-service of
summons. The appellant has appeared in the witness box and we have carefully
perused his statement. There is no cross-examination directed towards B
discrediting the testimony on oath of the appellant, that is, to draw an inference
that the appellant had in any manner a notice of the date of hearing and had
.. sufficient time to appear and answer the plaintiffs claim which he did not
avail and utilise.

The provision contained in Order 9 .Rule 6 of the C.P.C. is pertinent
c
It contemplates three situations when on a date fixed for hearing the plaintiff
appears and the defendant does not appear and three courses to be followed
by the Court depending on the given situation. The three situations are: {i)
when summons duly served, (ii) when summons not duly served, and (iii)
when summons served but not in due time. In the first situation, which is D
relevant here, when it is proved that the summons was duly served, the Court
may make an order that the suit be heard ex-parte. The provision casts an
obligations on the Court and simultaneously invokes a call to the conscience
of the Court to feel satisfied in the sense of being 'proved' that the summons
was duly served when and when alone, the Court is conferred with a discretion E
to make an order that the suit be heard ex-parte. The date appointed for
hearing in the suit for which the defendant is summoned to appear is a
significant date of hearing requiring a conscious application of mind on the
part of the Court to satisfy jtself on the service of summons. A11y default or

- casual approach on the part of the Court may result in depriving a person of
his valuable right to participate in the hearing and may result in a defendant F
suffering an ex-parte decree or proceedings in the suit. wherein he was deprived
of hearing for no fault of his. If only the Trial Court would have been
conscious of its obligation cast on it by Order 9 Rule 6 of the C.P.C., the case
would not have proceeded ex-parte against the defendant-appellant and a
wasteful period of over eight years would not have been added to the life of G
this litigation.

Be that as it may, we are satisfied that the summons was not served on
the defendant-appellant. He did not have an opportunity of appearing in the
Trial Court and contesting the suit on merits. The Trial Court and the High
Court have committed a serious error of law resulting in failure of justice by H
~

358 SUPREME COURT REPORTS [2002] 3 S.C.R.

A refusing to set aside the ex-parte decree. Jt ~ '

The appeal is allowed. The orders of the Trial Court and the High
Court are set aside. The application under Order 9, Rule 13 C.P.C. filed by
the defendant-appellant is allowed. The ex-parte decree dated 9.10.1993 is
set aside. The proceedings of the Trial Court shall stand relegated back to
B 23.2.1993. The parties through their respective learned coun_sel are directed
to appear before the Trial Court on 5.8.2002, on which date, the Trial Court
....
shall appoint a date of hearing and proceed ahead with the hearing of the suit
~
in accordance with law. No costs. Let the record of the Trial Court be ,.,
transmitted back at the earliest accompanied by a copy of this Order.
c R.P. Appeal allowed.

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