The Himachal Pradesh High Court observed that the second proviso to Order 9 Rule 13, Code of Civil Procedure(CPC) 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 and answer the plaintiffs claim.

The Himachal Pradesh High Court considered a petition against the order allowing setting aside of the ex parte decree, despite the service of process by affixation.

A Bench of Justice Satyen Vaidya observed, “Order 9 Rule 13 of the Code provides that ex parte 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...Thus, for application of second proviso to Rule 13, two things are required. Firstly, the mere irregularity in service is not sufficient and secondly, the Court should be satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. If both the conditions are satisfied the court is mandated, by the use of the term ‘shall’, not to set aside the ex parte decree.”

Senior Advocate Sanjeev Bhushan represented the Petitioner, while Advocate Vikas Chauhan represented the Respondents.

Case Brief

It was the case of the Petitioner that the trial court set aside the ex parte decree merely on the claim of the Respondents that they had no knowledge about the filing of the suit because they were not served in the case at any point of time.

Court’s Analysis

The Court opined that the findings returned by the trial Court are contradictory and the requirement of Order 5 Rule 17, CPC was satisfied in the case.

“Thus, when the summons along with a copy of plaint issued by the court was affixed on the main gate of the office of defendants, it is hard to assume that no one had come to know about the fact of such affixation or the filing of the suit. AW-2 and AW-3 as per their own admission are permanently stationed at office in village Kalhuien. They even had their residences in the same complex. In such circumstances, it will not be unreasonable to infer that the defendants had due notice of the filing of the suit and date of hearing”, the Court said.

With regard to the contention of the Respondents that they had no knowledge of the matter, the Court referred to proviso to Order 9, Rule 3 CPC that it provides 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 and answer the plaintiffs claim.

Accordingly, the Petition was allowed.

Cause Title: Devi Dass V. M/s Ginni Global Pvt. Ltd. and Anr. (Neutral Citation:2025:HHC:20743)

Appearance:

Petitioner: Senior Advocate Sanjeev Bhushan and Advocate Sparsh Bhushan

Respondents: Advocate Vikas Chauhan

Click here to read/download Judgment

Himachal Pradesh High CourtJustice Satyen Vaidya

Pridhi Chopra

    Pridhi Chopra was earlier practicing as an Advocate in Delhi. She pursued B.A. (H) English from Gargi College, University of Delhi, and subsequently pursued a degree in Law.