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Judgment Intelligence
Petition AllowedKanta Devi & Ors. v. Parsaram & Anr.
2026:RJ-JD:43846
S.B. Civil Miscellaneous Appeal No. 2623/2024
- Court
- Rajasthan High Court
- Date of Decision
- 17 September 2026
- Bench
- Justice Farjand Ali
- Relevant Acts & Sections
- Code of Civil Procedure, 1908 — Order V Rule 20, Order IX Rule 13, Section 151
Final Outcome
Appeal allowed; the order of 29.08.2024 and the ex parte decree of 23.08.2017 set aside and the suit restored to its stage on 16.11.2013; the appellants to file written statements within 60 days of appearing; merits left open (paras 7-7.2).
Key holdings
- A locked house or an incomplete address does not by itself show deliberate evasion of service (para 4.6).
- Substituted service needs recorded judicial satisfaction, not a mechanical endorsement of the plaintiff's application (paras 5-5.1).
- The newspaper chosen must have circulation where the defendant actually resides; publication is not an end in itself (paras 5.2-5.3).
- The second proviso to Order IX Rule 13 cannot be invoked on the strength of a newspaper publication alone (para 5.8).
Brief Facts
In 2013 the plaintiff sued the appellants for specific performance of an agreement to sell agricultural land (para 2.1). Summons came back unserved: the house at Chirawa was locked, and the process server reported that the first appellant lived in Shankar Vihar Colony, Jaipur, though the full address was not available (para 2.2). On 06.12.2013 the trial court allowed the plaintiff's application for publication in a newspaper; the appellants were proceeded against ex parte and a decree for execution of a sale deed and an injunction followed on 23.08.2017 (paras 2.4-2.5, 4.9, 7). Learning of it in execution, they applied under Order IX Rule 13, which the District Judge, Churu dismissed on 29.08.2024 (paras 1, 2.6).
Court's Findings
Order IX Rule 13 allows an ex parte decree to be set aside if summons were not duly served, or for sufficient cause; a mere irregularity does not suffice if the defendant had notice (paras 4-4.4). Substituted service under Order V Rule 20 is an exception: a locked house is not evasion, and an incomplete address with a clue to the defendant's whereabouts calls for further effort (paras 4.5-4.8). The court must record satisfaction that the defendant is avoiding service, that service cannot otherwise be effected, and that ordinary service was diligently tried (para 5). The order of 06.12.2013 merely allowed the application, though her Jaipur locality was known (paras 4.9-5.1). Publication must use a newspaper circulating where the defendant lives; proof of publication is not proof of effective service, and the second proviso cannot rest on publication alone (paras 5.2-5.9). The defect went to the root (para 5.10).
Legal Principle
Before ordering substituted service under Order V Rule 20 CPC, a court must record satisfaction, on the material, that the defendant is evading service or cannot otherwise be served despite diligent attempts. Publication without it is not due service, and the ex parte decree must be set aside under Order IX Rule 13 (paras 5-5.4, 6.4).
