SUSHIL KUMAR SABHARWAL versus GURPREET SINGH AND ORS.

Citation: [2002] 3 S.C.R. 352 · Decided: 23-04-2002 · Supreme Court of India · Bench: R.C. LAHOTI, B.N. AGRAWAL · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
SUSHIL KUMAR SABHARWAL 
v. 
GU RPREET SINGH AND ORS. 
APRIL 23, 2002 
B 
[R.C. LAHOTI AND B.N. AGRAWAL, JJ.] 
Code of Civil Procedure, 1908: 
Order 9, Rule 13, second proviso-Suit for recovery of arrears of rent 
C and for eviction of tenant-Ex-Parte decree-Application for setting aside ex-
parte decree-Tenant stating on oath that no summons was tendered to him-
Process server stating that he tendered summons to-tenant a day prior to date 
of hearing but latter refused to accept the same-Held, it is a case of oath 
against oath-Oath of tenant was more weighty than that of process server-
D Besides, procedure of service as laid down in Order 5, Rules 17 and 18 not 
followed-It is not a case of mere irregularity in service of summons, but a 
case of non-service of summons-Landlord's contention that tenant had 
knowledge of the proceedings is of no avial-Jt is the knowledge of the 'date 
of hearing' and not the knowledge of 'pendency of suit' which is relevant for 
purpose of the second provso to Order 9, Rule 13-As summons was not 
E served on tenant, he did not have opportunity of appearing in court and 
contesting the suit-Trial court and High Court erred in law, resulting in 
failure of justice, by refusing to set aside the ex-parte decree-Ex-parte decree 
set aside-Trial court to proceed with the hearing of the suit in accordance 
with law. 
F 
Order 9, Rule 6-Suit-Ex-parte hearing-Held, the provision casts an 
obligation on the court and simultaneously invokes a call to the conscience of 
the court to feel satisfied in the sense of being 'proved' that the summons was 
duly served when and when alone, the court is conferred with a discretion to 
make an order that the suit be heard ex-parte-The date appointed for hearing 
G in the suit for which the defendant is summoned to appear is a significant date 
of hearing requiring a conscious application of mind on the part of the court 
to satisfy itself on the service of summons-Any default or casual approach on 
the part of the court may result in depriving a person of his valuable right to 
participate in the hearing and may result in a defendant suffering an ex-parte 
decree or proceedings in the suit wherein he was deprived of hearing for no 
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S.K. SABHARWAL v. GURPREET SINGH 
353 
fault of his-If only the trial court would have been conscious of its obligation 
cast on it by Order 9 Rule 6, the case would not have proceeded ex-parte 
against the defendant-Appel/ant and a .wasteful period of over eight years 
would not have been added to the life of this litigation-Ex-parte decree set 
aside. 
Order 5, Rules 17 and 18--Service of summons-Process server reporting 
that he tendered summons to tenant who refused to accept the same-No 
evidence that on such refusal process server affixed copy of plaint and summons 
on wall of premises-Nor signatures of two witnesses obtained-Trial court 
decreeing suit against tenant ex-parte-He/d, it is the case of non-service and 
not mere irregularity in service of summons. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5111 of 
2000. 
From the Judgment and Order dated 2.2.2000 of the Punjab and Haryana 
High Court in C.R. No. 3783 of 1999. 
K.T.S. Tulsi, R.C. Mishra, Dr. Meera Agarwal and Rishi Malhotra for 
the Appellants. 
P.N. Puri for the Respondents. 
The following Order of the Court was delivered : 
This is a landlord-tenant litigation. The tenant is aggrieved by an ex-
parte decree dated 9.10.1993 for recovery of arrears ofrent and eviction from 
the suit premises bearing plot No. 9, Chowk Shakti Nagar, Amritsar where 
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the tenant carries on his business of selling shoes. An application under F 
Order 9, Rule 13 of the C.P.C. seeking setting aside of the ex-parte decree 
was filed which was opposed, enquired into and rejected by the Trial Court. 
The Civil Revision preferred by the tenant met with the same fate. The tenant 
has filed this appeal by Special Leave. 
A perusal of the record of proceedings shows that the process server G 
was entrusted with summons for service on the defendant-tenant. The date of 
hearing appointed was 23.2.1993. According to the process server, Narinder 
Jeet Singh, he went to the shop of the tenant-appellant on 22.2.1993 and 
tendered to him the summons accompanied by a copy of the plaint. The 
tenant refused to accept the summons. Then, he returned the summons 
alongwith an endorsement of refusal on the back of summons to the Court H 
354 
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