LI Network
Published on: December 26, 2023 at 13:50 IST
The Allahabad High Court determined that the mere formalities of obtaining witness signatures and affixing a notice on the outer door or a conspicuous part of a house where a person ordinarily resides are insufficient for valid notice service.
This decision came in a first appeal challenging the rejection of a restoration application under Order 9 Rule 13 of the Civil Procedure Code (CPC) by the Additional District and Sessions Judge.
Justice Dinesh Pathak, in a Single Bench, emphasized, “Apart from that, mere formality of obtaining the signature of witnesses and affixing notice on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides are not sufficient to complete the valid formality of service of notice.”
The appeal pertained to a suit for permanent prohibitory injunction filed by the respondent against the appellant. The respondent sought to restrain the appellant from interfering with their peaceful possession of the property and dismantling existing constructions.
The appellant claimed that, having repaid borrowed money, the respondent was attempting wrongful dispossession. The suit, amended to include relief for the cancellation of a registered sale deed, proceeded ex-parte against the appellant.
The High Court criticized the lack of due diligence by the Process Server in adhering to the procedures outlined in Order 5 Rules 12, 15, and 17 of the CPC.
It highlighted the failure to explore personal service or service on an authorized agent before resorting to affixing the notice.
The Court also noted that the Trial Court did not evaluate the Process Server’s diligence or discuss the provisions related to effective notice service.
The judgment stated, “The Trial Court failed to consider the relevant provisions for the effective service of notice upon the defendant-appellant as enunciated under Order 5 Rule 12, 15, 17, and 19 C.P.C. and thus, service of notice upon the defendant no.2 cannot be treated to be sufficient for the purposes of deciding the suit ex-parte or for the purposes of deciding the delay in filing the restoration application against the ex-parte decree.”
The Court held that the Trial Court wrongly denied the benefit of Section 5 of the Limitation Act for condoning the delay in filing the restoration application. It concluded that the delay should be condoned, allowing the restoration application, and deeming the order under challenge as illegal.
Consequently, the High Court directed the appellant to submit a written statement with relevant documents and scheduled the case for January 22, 2024.
Case Title: Rakesh Kumar Jain v. Zulfkar Ali
