Introduction:

In the case of Devi Dass v. M/s Ginni Global Pvt. Ltd. & another (CMPMO No. 305 of 2022), the Himachal Pradesh High Court, through Justice Satyen Vaidya, delivered a detailed judgment on 1 July 2025, setting aside a Trial Court’s order that had earlier set aside an ex parte decree passed in favor of the petitioner. The dispute arose from a civil recovery suit filed by Devi Dass against the respondents for an amount of ₹20 lakhs. Despite repeated attempts at serving summons, the respondents did not appear before the Trial Court, resulting in an ex parte decree in favor of the petitioner. However, the respondents later approached the Trial Court with an application under Order 9 Rule 13 CPC along with Section 5 of the Limitation Act, contending that they were unaware of the suit proceedings and only became aware upon receiving notice of execution. The Trial Court accepted their plea, found irregularities in the service of summons, and set aside the ex parte decree, prompting the petitioner to challenge this order before the High Court.

Arguments of the Petitioner and Respondents:

Senior Advocate Mr. Sanjeev Bhushan, appearing for the petitioner along with Mr. Sparsh Bhushan, argued that the service of summons was done in accordance with the Civil Procedure Code, especially Orders 5 and 29. He contended that the process server made multiple diligent attempts to serve the summons personally. On failing to find the respondents or any authorized representative available, the process server affixed the summons to the main gate of the respondents’ registered office in the presence of an employee, who refused to acknowledge or sign the service. He asserted that this satisfied the requirements of Order 5 Rule 17, which permits service by affixation when the defendant is absent after due diligence, and that the process server’s report was duly verified by affidavit, thus complying with Rule 19. He submitted that the Trial Court erred by ignoring the verified report of the process server and by construing the absence of further examination as fatal, despite the clear proviso in Rule 13 of Order 9 CPC, which prohibits setting aside an ex parte decree merely for irregularities if it can be established that the defendant had notice of the hearing and sufficient opportunity to contest. He argued that the respondents’ plea of having no knowledge was false because summons were served at their place of business and no explanation was offered for avoiding participation in the proceedings after valid service.

Conversely, Mr. Vikas Chauhan, appearing for the respondents, defended the Trial Court’s decision, asserting that there were material lapses in the service of summons, violating the mandatory procedure under Order 5 Rules 17 and 19 CPC. He submitted that the process server failed to produce an affidavit verifying the affixation or to be examined on oath by the Court as required under Rule 19, thereby making the service defective. The respondents argued that this defect deprived them of their right to fair hearing as guaranteed under the principles of natural justice and Article 21 of the Constitution, and that the first notice they received about the suit was during execution proceedings, proving lack of awareness of the earlier decree. Counsel also pointed to contradictions in the Trial Court records, where one order stated that summons were duly served while another doubted the same, underscoring procedural inconsistency that justified setting aside the ex parte decree. The respondents further argued that in commercial disputes involving substantial sums, Courts must lean towards allowing defendants an opportunity to contest on merits, especially when doubts about service exist, to prevent miscarriage of justice.

Court’s Judgment:

Justice Satyen Vaidya, after analyzing the entire record and rival submissions, held that the Trial Court’s order setting aside the ex parte decree was unsustainable. The High Court observed that while the Trial Court found the service of summons invalid because the process server was not examined on oath under Order 5 Rule 19 CPC, it failed to appreciate that the process server had already submitted a verified report, which satisfies Rule 19 when read harmoniously with Rule 17. The High Court noted contradictions in the Trial Court’s own orders: while one order recorded that service was duly effected, the impugned order doubted the service. Justice Vaidya emphasized that the process server made two diligent attempts and, upon failure to find any responsible person, affixed the summons on the main gate of the registered office—a method explicitly permitted under Order 5 Rule 17, especially when read with Rule 2(b) of Order 29 CPC, which provides that service on a company can be effected by leaving summons at its registered office. The Court found that the process server’s affidavit, detailing efforts made and circumstances of affixation, established substantial compliance with procedural requirements. The High Court further ruled that under the second proviso to Order 9 Rule 13 CPC, no Court shall set aside an ex parte decree merely for irregularity in service if it is satisfied that the defendant had notice of the hearing date and sufficient time to contest the claim, which was the case here since summons were affixed at the registered office in the presence of company staff who refused to sign, clearly indicating notice of proceedings. The Court concluded that the respondents failed to prove either improper service or sufficient cause for non-appearance when the suit was called for hearing, and that their plea appeared to be a tactic to delay execution. Justice Vaidya clarified that mere irregularity, absent proof of no notice or sufficient cause, is insufficient to set aside an ex parte decree under Order 9 Rule 13 CPC. The High Court set aside the Trial Court’s impugned order, restored the ex parte decree in favor of the petitioner, and directed the Trial Court to proceed with execution expeditiously, thus reiterating that procedural lapses must be distinguished from substantive violations of natural justice, especially when the party affected had effective notice and time to respond.