Introduction:

In the suit Ram Kishan v. Ram Dai & Ors. (2025 Live Law (Raj) 259), the Rajasthan High Court, in a petition filed by Ram Kishan, set aside an ex‑parte judgment and decree originally granted by the trial court and upheld on first and second appeal. The judgment had been based on incomplete service of summons under Order 5, Rule 17, CPC, in a declaration and permanent injunction suit filed by the respondents. The petitioner challenged the validity of the proceedings on the ground that the process server affixed the summons on the petitioner’s house without obtaining signatures of an independent witness, rendering the service invalid and the consequent decree unsustainable.

Arguments of the Petitioner:

The petitioner argued that service of summons is mandatory under Order 5, Rule 17, CPC, to be effected by affixing notice on a conspicuous part of the house only after verifying the noticee’s address through an independent witness, whose signature must be recorded in the service report. In the present case, the process server merely affixed the summons on the house but failed to secure any witness signature, violating the procedure prescribed by the CPC. Due to this lapse, the petitioner contended, the trial court should not have treated the service as complete, and ex‑parte proceedings ought not to have been initiated. He also submitted that neither the trial court nor the appellate courts had considered this crucial defect, leading to a grave miscarriage of justice. Further, once the petitioner became aware, he promptly pursued appeals and ultimately petitioned the High Court to correct the procedural error and secure his opportunity to be heard.

Arguments of the Respondents and Trial/Appellate Courts:

The respondents, in their pleadings before the trial court and the appellate forums, maintained that the attempt at service was duly recorded and sufficient to proceed. Relying on the process server’s report indicating affixation of the summons in a conspicuous place, they argued that substantial compliance with Order 5, Rule 17 had been achieved, and it was open to the courts below to take such report at face value. They contended that the petitioner’s failure to appear or contest the suit warranted ex‑parte judgment, and that service was not a fatal defect. The lower courts upheld the decree on appeal, interpreting the process server’s report as legitimate and sufficient, and accordingly dismissed the petitioner’s objections without thanking his submissions.

Court’s Judgment:

The High Court, presided over by Justice Anoop Kumar Dhand, scrutinized the procedural requirements under Order 5, Rule 17, CPC, which mandates, in cases where personal service is not possible, affixation at a conspicuous part of the house along with the signature of a resident or independent witness who identifies the house and verifies the address in the presence of the process server. The bench held that mere affixation without the required witness signature constitutes incomplete service, and cannot satisfy the statutory mandate. Justice Dhand explicitly observed that in the instant case, the process server failed to obtain any witness signature identifying the petitioner’s residence, rendering the entire service process unverified and invalid. On that basis, the court concluded that an ex‑parte judgment premised on such defective service could not stand. Per the court: “Process Server failed to secure the signature of witness … on the basis of such unverified report, the Trial Court treated the service as complete.” The absence of verification “through a witness” meant that the summons were never lawfully served, and therefore the petitioner never entered appearance because he was never properly made aware. Consequently, the High Court set aside the ex‑parte decree and dismissed the petition, thereby restoring the petitioner’s right to be heard and ensuring adherence to civil procedure rules.