M/S NEERJA REALTORS PVT LTD versus JANGLU (DEAD) THR. LR.

Citation: [2018] 1 S.C.R. 359 · Decided: 29-01-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Dismissed

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Judgment (excerpt)

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M/S NEERJA REALTORS PVT LTD
v.
      JANGLU (DEAD) THR. LR.
(Civil Appeal No. 71 of 2018)
JANUARY 29, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR.  D. Y. CHANDRACHUD, JJ.]
Code of Civil Procedure, 1908:
Or. V, rr. 17 and 20 – Application for susbstituted service –
Allowed – Subsequent to substitued service by publicatin, ex-parte
decree – Appeal under s.96 CPC – Allowed by High Court – On
appeal, held: In the present case there was a breach of the provisions
of Or. V, r.17 – Substituted service is an exception to the normal
mode of service – Or. V, r. 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 –
Trial court failed to apply its mind to the requirements of Or. V, r. 20
and passed a mechanical order – Trial court also ignored the
provisions contained in Chapter 3 of Civil Manual – Civil Manual
issued by High Court of Bombay – Chapter III – Paragraphs 33 to
36.
Decree:
Ex-parte decree – Remedy against – Held: Remedy against
ex-parte decree is either an appeal u/s 96 CPC or an application u/
Or. IX, r. 13 CPC or both the proceedings simultaneously – Right of
appeal is not taken away by filing application u/Or. IX, r.13 – But if
appeal is dismissed, application u/Or. IX, r.13 is not maintainable –
When application u/Or. IX r.13 is dismissed, remedy lies u/Or. XLIII,
r.1 – However once appeal u/Or.XLIII, r.1 is dismissed same
contention cannot be raised in appeal u/s. 96 – Code of Civil
Procedure, 1908 – s.96, Or.IX, r.13 and Or. XLIII, r.1.
Dismising the appeal, the Court
HELD: 1.1 The record before the Court would indicate that
the Trial Court by its order dated 9 February 2011 directed the
[2018] 1 S.C.R. 359
359
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
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.  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 CPC. When the application for substituted service was filed
before the Trial Court under Order V Rule 20 CPC, 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, 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. [Paras
14,15][364-D; 365-A-D]
1.2 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. [Para 15][366-
D-E]
2. A defendant against whom an ex-parte decree is passed
has two options: The first is to file an appeal. The second is to
file an application under Order IX Rule 13 CPC.  The defendant
can take recourse to both the proceedings simultaneously. The
right of appeal is not taken away by filing an application under
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Order IX Rule 13.  But if the appeal is dismissed as a result of
which the ex-parte decree merges with the order of the Appellate
Court, a petition under Order IX Rule 13 would not be
maintainable.  When an application under Order IX Rule 13 i

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