Court Must Examine Process Server Before Proceeding Ex-Parte On Alleged Refusal Of Summons: Rajasthan High Court

The Rajasthan High Court has held that accepting report of service of summons is a solemn act and not merely a formality. It is court's duty to examine the process serving officer if the report was not an affidavit. And even if the report was on affidavit, it is court's discretion to examine the officer to ascertain the correctness of the report.

The bench of Justice Anoop Kumar Dhand observed that the intention of serving summons was to make the party aware of proceedings against him/her so that no decision was reached behind his/her back. Hence, it is court's primary duty to adhere to all procedural requirements prior to proceeding ex-parte against the concerned party.

“Proof of the service of summons is essential condition for proceeding ex-parte against the concerned defendant. It was incumbent on the part of the trial Court to examine the Process Server and the witnesses of the refused notice/summon on oath. Obviously, the intention of such examination is to see that chances of a false endorsement of such attempt to serve the summons and refusal thereof are minimized.”

The Court was hearing a petition challenging dismissal of an application seeking setting aside of an ex-parte order passed against the petitioner.

A suit for setting aside a sale deed was filed against the petitioner. Based on a summons report to the effect that summons were refused to be accepted by the petitioner, the Court proceeded and decreed the suit ex-parte. An application was filed for setting aside the ex-parte order, which was dismissed. Hence, the petition was filed before the Court.

It was the case of the petitioner that the witnesses in whose presence the summons were affixed on conspicuous place at petitioner's residence did not reside there, but were residents of neighboring village. Hence, their presence was highly doubted. Neither were these witnesses examined in the court.

It was further submitted that one witness who had attested the sale deed was deliberately impleaded, who was neither necessary nor a proper party. After service, the witness submitted an admitted written statement favouring the respondents, based on which the suit was decreed ex-parte.

After hearing the contentions, the Court accepted the arguments of the petitioner. It was held that since the witnesses whose signatures were on the process service report belonged to different village, their present at that time appeared doubtful.

Further, the Court held that if any ex-parte decree was passed based on refusal of notice, court was duty bound to examine the process service, which was not done in the present case.

“Perusal of Rules 17 and 19 of Order V of the Code of Civil Procedure shows that in order to accept the service as valid service, particularly, when the report is to the effect that the respondent refused to accept the summons then, it become duty of the Court to examine the Process Serving Officer if his report is not on affidavit. Even if the Process Serving Officer gives his report on affidavit, discretion is with the Court to examine the Process Serving Officer in order to ascertain, whether his report of is correct or not in order to hold the service valid. with these mandatory requirements, the Court is required to declare, whether the summons is duly served or not.”

The Court also took into account the fact that the ex-parte decree being passed based on written statement by the attesting witnesses of the sale deed who favoured the respondents.

While underscoring the object of issuing summons, it was held that it was unsafe to proceed against the petitioner ex-parte. Accordingly, the ex-parte decree was set aside, and the matter was remitted to the trial court for adjudication.

Title: Devkrishna & Ors. v Kaluram & Ors.

Citation: 2026 LiveLaw (Raj) 45

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