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Judgment
The present writ petition under Article 227 of the Constitution of India has been filed by the petitioner against the impugned order dated 23.07.2026 passed by the Ist District Judge Raipur in Misc. Civil Appeal No.33 of 2026 whereby the Misc. Appeal filed by the respondents have been allowed, the order dated 14.05.2026 passed by IVth Civil Judge (Senior Division) Raipur in Civil MJC No.36 of 2025 is set aside and the exparte judgment and decree dated 03.05.2024 is set aside and remitted the matter back to the trial court to decide the suit afresh after providing proper opportunity of hearing to the parties on its own merit.
Learned counsel for the petitioner would submit that the petitioner was plaintiff before the trial court who was prosecuting a suit for eviction and vacant possession of the suit property which is the house situated at village Changora Bhata, PH No.105, Tehsil and District Raipur, over the diverted land Khasra No.137/2, Area 2167 sq. feet and also for means profit. The suit was filed on 31.10.2022 and notices were issued to the defendants. Notice issued to defendants were returned unserved with an endorsement that addressee could not be found on the given address and family members have refused to accept the notice which deemed to be due service of summons upon the defendants. Thereafter, the plaintiff filed an application under Order 5 Rule 20 of CPC for substituted service of summons upon the defendants through paper publication. Vide order dated 12.04.2023 the substituted service of summons was allowed and thereafter on 07.05.2023 summons to defendants were published in the local newspaper having circulation over the area, yet the defendants have not chosen to appear in the proceeding and they proceeded exparte and ultimately an exparte judgment and decree was passed in favour of the plaintiff by judgment and decree dated 03.05.2024. When the plaintiff filed execution application and notices were issued in execution proceeding, they filed an application under Order 9 Rule 13 of CPC on 09.06.2025 for setting aside exparte judgment and decree along with application under Section 5 of the Limitation Act.
The application filed by the defendants under Section 5 of the Limitation Act as well as application under Order 9 Rule 13 of CPC was dismissed by the trial court vide order dated 14.05.2026 holding that despite service of summons to the defendants, they did not appear in the proceeding and could not shown sufficient cause for their non appearance in the proceeding even they were duly served with the summons. Delay in filing application also has not been properly explained and therefore the application was rejected, however, in the appeal filed by the defendants, the appellate court set aside the order passed by the trial court and by allowing the application, also set aside the exparte judgment and decree dated 03.05.2024 passed in favour of the plaintiff. He would further submit that the appellate court has failed to consider that notice issued to defendants have duly been served. When service of summons were effected upon them through registered AD mode and when their family members refused to accept the same, as per Section 27 of The General Causes Act, 1897 (in short, the Act, 1897), the service of registered AD post sent to the addressee are deemed to be served and in the present case as the family members have refused to accept the notice, it should be considered as service of summons upon the defendants, yet they have not chosen to appeal in the proceeding and remained absent. Considering the facts and circumstances of the case, the plaintiff filed an application under Order 5 Rule 20 of CPC which was allowed for substituted service of summons by publication of summons in daily newspaper. The summons for defendants were also published on 07.05.2023 in Nav Bharat Daily Newspaper which was widely circulated in the area, yet defendants have not appeared in the proceeding. He would also submit that the defendants have not explained any reason for their non appearance in the proceeding and for condonation of delay. The submission of defendants that they came to know about the exparte judgment and decree on 23.05.2025 is misconceived as the summons have duly been served upon them on earlier occasion. Even it was published in daily newspaper. The trial court is empowered to set aside the exparte judgment and decree only when the trial court is satisfied that summons was not duly served or that the defendants were prevented or any sufficient cause from appearing when the suit was called for hearing. In the present case, the summons was duly served and the trial court after considering due service of summons passed the exparte judgment and decree. The appellate court while setting aside the order passed by the trial court has not recorded any satisfaction that the defendants have satisfied the sufficient cause for their non appearance in the proceeding. Even the condonation of delay has not been properly considered by the trial court and allowed the appeal filed by the defendants and set aside the exparte judgment and decree. The counsel for the petitioner, relying upon the judgment passed by the Supreme Court in case of Parimal Vs. Veena @ Bharti, 2011(3)SCC545, would submit that the impugned order is passed by the appellate court against the consideration of judgment passed in case of Parimal (Supra) and the same is liable to be set aside by upholding the order dated 14.05.2026 passed by the trial court.
I have heard the counsel for the petitioner and perused the documents annexed with the petition.
It is not in dispute in the present writ petition that exparte judgment and decree was passed in favour of the plaintiff on 03.05.2024. The submission of the defendants before the trial court was that they were not served with the summons and they came to know about the exparte judgment and decree when notices were issued in execution proceeding on 23.05.2025. Thereafter, they obtained certified copy of the impugned judgment and decree and filed their application for setting aside exparte judgment and decree on 09.06.2025. In their application filed under Order 9 Rule 13 of CPC, Annexure P/7, they averred that there is family dispute between the parties and there is difference of opinion between them. The plaintiff is the son of defendant No.1 and brother of defendants No.2&3. The defendants are claiming their right and title over the subject property in which the plaintiff alone is claiming his right. Hardship has also been averred in their application that they would be shelter-less if the exparte judgment and decree is not set aside. They have averred in their application that they were not in knowledge of the proceeding of the suit and as and when they came to know about the proceeding, they filed their application.
Perusal of order sheet of the trial court annexed in the petition, Annexure P/4, it transpires that the suit was filed on 31.10.2022 by the plaintiff and notices were ordered to be issued to the defendants by ordinary as well as by registered AD mode on 02.11.2022. Again on 12.12.2022 notices were ordered to be issued and as per the order dated 25.01.2023 it transpires that notice issued to the defendants was returned unserved with an endorsement that address is incomplete. Then, again the notices were ordered to be issued by both the modes. Again on 03.03.2023 the defendants were not served and again notices were ordered to be issued. From the order sheet dated 12.04.2023 it transpires that summons issued to the defendants through registered AD mode was returned unserved with the endorsement that addressee could not be found and then an application under Order 5 Rule 20 of CPC for substituted service of summons by paper publication in daily newspaper was filed by the plaintiff.
From perusal of order sheets, it clearly reveals that when the summons issued to the defendants through registered AD mode was received unserved, on the same day, an application under Order 5 Rule 20 of CPC was filed which was allowed by the trial court without verifying the fact that whether the defendants are willfully avoiding the service or not. The provisions of Order 5 Rule 17 CPC has not been considered by the trial court and directed for service of summons through substituted service mode by publishing it in daily newspaper.
In Neerja Realtors Private Limited Vs. Janglu (dead) through Legal Representative, 2018(2)SCC649, the Supreme Court has held that for ordering substituted service under the provisions of Order 5 Rule 20 of CPC, the court is required to be satisfied that there is reason to believe that defendants are keeping out of the way for the purpose of avoiding service or for any other reason the summons cannot be served in ordinary way, and it has been held in paragraph 12 to 15 as under:
“12.The record before the Court would indicate that the Trial Court by its order dated 9 February 2011 directed the issuance of summons to the original defendant, returnable on 15 March 2011. In pursuance of the order, summons were issued on 4 March 2011. The report of the bailiff dated 11 April 2011 indicates that the summons were returned unserved and the bailiff was informed that the original defendant had left the premises nearly two years earlier and resided elsewhere.
13.Order V Rules 17 provides as follows:
“17. Procedure when defendant refuses to accept service,
or cannot be found.- Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving 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 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 outer door or some other conspicuous part of the house in which the defendant ordinarily resides 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 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 ‘whose presence the copy was affixed.”
14.Evidently as the report of the bailiff indicates, he was unable to find the defendant at the address which was mentioned in the summons. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order V Rule 17. When the application for substituted service was filed before the Trial Court under Order V Rule 20, a cryptic order was passed on 2 September 2011. Order V Rule 20 requires the Court to be satisfied either that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary way. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the Trial Court failed to apply its mind to the requirements of Order V Rule 20 and passed a mechanical order. Besides this, as observed by the learned Single Judge of the High Court, the Trial Judge ignored the provisions contained in Chapter III of the Civil Manual issued by the High Court on its appellate side for the guidance of civil courts and officers subordinate to it. Paragraphs 33 to 36 of Chapter III are extracted below:
“33.In addition to the service to be effected through a bailiff, a summons may also be sent to the defendant, to the address given by the plaintiff, by registered post, prepaid for acknowledgement, provided there is a regular daily postal service at such place.
34.Rules as to service of summons are contained in rules 9 to 30 of Order V. Care should be taken to see that bailiffs follow those rules as well as the instructions given in the Bailiffs’ Manual.
35.It is the duty of the serving officer to follow the procedure and take all the steps laid down in rule 17 of Order V. He has no discretion for not taking the necessary steps, when the conditions laid down in the said rule are fulfilled.
36.It is for the Court to determine whether the service is good or bad. In determining whether the service is good or not, the attention of Courts is drawn to the necessity of strictly following the provisions of the Civil Procedure Code as to the service of processes. Ordinarily, service should not be considered sufficient unless all the requirements of the law in that behalf are fulfilled. The object of the service is to inform a party of the proceedings in due time. When from the return of a serving officer it appears that there is no likelihood that a process will come to the knowledge of the party in due time, or a probability exists that it will not so come to his knowledge, the service should not be considered to be proper. The law contemplates that the primary method of service should be tendering or delivering a copy of the process to the party personally, in case in which it may be practicable to do so. It is the duty of the serving officer to make all proper efforts to find the party, with a view to effect personal service. If it be not possible after reasonable endeavour to find the party, then only the service may be made on an adult male member of the family residing with him.”
The submission that under Order V Rule 20, it was not necessary to affix a copy of the summons at the court house and at the house where the defendant is known to have last resided, once the court had directed service by publication in the newspaper really begs the question. There was a clear breach of the procedure prescribed in Order V Rule 17 even antecedent thereto. Besides, the order of the Court does not indicate due application of mind to the requirement of the satisfaction prescribed in the provision. The High Court was, in these circumstances, justified in coming to the conclusion that the ex-parte judgment and order in the suit for specific performance was liable to be set aside.”
The plaintiff is claiming that the endorsement in the registered notice that addressee could not be found and their family members have refused to accept it, should be considered as sufficient proof of service of summons upon them as provided under Section 27 of the Act, 1897 and they deemed to be served with the summons, cannot be accepted for the reason that despite such report in the registered summons, the plaintiff filed an application for substituted service of summons. Had it been a case where the plaintiff himself considered the sufficient service of summons as provided under Section 27 of the Act, 1897, he would not have filed any application for further service through substituted mode. When he himself has filed an application for substituted service of summons, he himself did not consider to be deemed service of summons upon the defendants and when he filed an application under Order 5 Rule 20 of CPC, the concept of deemed service is diluted and he cannot take benefit of the same that by refusing the family members to accept the registered summons, the summons is deemed to be effected upon the defendants.
The expression 'sufficient cause' occurring in Order 9 Rule 13 of the CPC has been considered by the Hon'ble Supreme Court in G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54, wherein it has been held that the expression must be construed liberally to enable the Court to do complete justice, particularly where negligence or inaction cannot fairly be attributed to the party seeking relief. The Hon'ble Supreme Court further observed that sufficient cause is an elastic 7 expression and that its existence must be determined in the light of the facts and circumstances of each case. The relevant consideration is whether sufficient cause prevented the defendant from appearing when the suit was called for hearing and the proceedings were ordered to proceed ex parte. In para 7, it has been held that:-
“7.Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.”
So far as the question of limitation is concerned, Article 123 of the Limitation Act, 1963 prescribes a period of 30 days for filing an application under Order IX Rule 13 of the CPC, commencing from the date of the decree where the summons was duly served and, where the summons or notice was not duly served, from the date of knowledge of the decree. In the present case, although the learned Courts below have proceeded on the basis that the summons was duly served and that limitation commenced from the date of the ex parte decree, the petitioner's explanation regarding his medical condition and the circumstances in which he could not participate in the proceedings also deserves consideration in the context of the delay occasioned in seeking the remedy. In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the Hon'ble Supreme Court held that the length of delay is not decisive and that the acceptability of the explanation furnished for the delay is the relevant consideration. It has been held that:-
“9.It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be 9 uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court. 11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.”
The Hon'ble Supreme Court further observed that the law of limitation is intended to ensure diligence in pursuing remedies and not to destroy the rights of parties where the explanation is found to be bona fide and sufficient. Applying the aforesaid principle, the petitioner's explanation, supported by the medical circumstances pleaded by him and the prompt steps taken after acquiring knowledge of the decree, ought to 10 be considered in a manner that advances substantial justice, subject to the requirements of Section 5 of the Limitation Act, wherever applicable. The finding regarding limitation, therefore, cannot be considered in isolation from the explanation placed on record for the delay.
Another relevant circumstance is that the defendants claims to have acted promptly after receiving notice in the execution proceedings. He applied for certified copies of the exparte judgment and decree on 28.05.2025 which was delivered to them on 03.06.2025 and immediately thereafter they filed their application under Order 9 Rule 13 of the CPC on 09.06.2025. This sequence of events lends support to their contention that upon becoming aware of the decree, they took steps to seek its setting aside without further delay. Though the truth or otherwise of their defence cannot be examined at the stage of deciding the application under Order 9 Rule 13 of the CPC, the nature of the dispute and the valuable rights involved reinforce the need to ensure that the defendants are to be afforded a fair opportunity of hearing if their absence is found to have resulted from circumstances beyond their control. In G.P. Srivastava (supra), the Hon'ble Supreme Court emphasised that the expression 'sufficient cause' must receive a liberal construction where the circumstances do not indicate deliberate absence or a lack of bona fides. In the facts of the present case, the defendant’s non appearance and the steps taken by them after acquiring knowledge of the decree, considered cumulatively, justify granting them an opportunity to contest the suit.
The appellate court has considered that trial court has failed to appreciate the explanation furnished by the defendants for their non appearance and for condonation of delay. The defendant’s contention supported by the affidavit could not be rebutted by the plaintiff by filing counter affidavit and in such situation the unrebutted averment of the defendants are sufficient to allow their application for setting aside exparte judgment and decree and without considering the said aspect of the case the trial court has rejected the application. The appellate court, interfering with the order passed by the trial court allowed the appeal and set aside the order of the trial court.
In Shalini Shyma Shetty & Another Vs. Rajendra Shankar Patil, 2010(8)SCC329, the Supreme Court has held that the power of interference under Article 227 of the Constitution of India is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted. In order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court, it should be exercised in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority. Supervisory jurisdiction is not to correct every error of facts or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusions, for that of inferior court or Tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set aside grave dereliction of duty or flagrant abuse, violation of fundamental principle of law or justice. The relief under Article 227 of the Constitution of India should be given sparingly and only to ensure that there is no miscarriage of justice.
In the present case, looking to the dispute between the parties as has been pleaded in the plaint, and also that the defendants are entitled to defend their case and they should be provided opportunity for the same, the appellate court allowed their appeal and set aside the impugned exparte judgment and decree and remitted the matter back to the trial court for deciding the suit afresh after providing opportunity of hearing to the parties, and also in accordance with law on its own merits, in which this court does not find any perversity or jurisdictional error to interfere with the impugned order.
The judgment passed in case of Parimal (Supra) cited and relied upon by the counsel for the petitioner is distinguishable with the facts of present case and therefore no benefit could be extended to the petitioner from that judgment.
As a fallout, the writ petition fails and is hereby dismissed.