Mere Knowledge Of Suit Or Receipt Of Ex Parte Injunction Order Doesn't Trigger 120-Day Limit To File Written Statement: J&K&L High Court

Shedding light on the procedural jurisprudence under the Civil Procedure Code the Jammu & Kashmir and Ladakh High Court has held that mere knowledge of a civil suit even through receipt of an ex parte injunction order cannot trigger the mandatory 120-day limitation for filing a written statement.The Court ruled that the statutory clock under Order VIII Rule 1 CPC begins to run only upon lawful service of summons in the manner prescribed under Order V CPC, warning that procedural shortcuts cannot extinguish a litigant's substantive right to defend a suit. Justice Sanjay Parihar delivered the judgment while allowing a civil revision petition filed by one Rama Rani, setting aside an order of the 3rd Additional Munsiff, Jammu, which had closed her right to file a written statement after treating service of an ex parte injunction order as equivalent to service of summons. The dispute arose from a civil suit instituted by the respondent in December 2022. The trial court subsequently closed the petitioner's right to file a written statement, holding that the mandatory period of 120 days under Order VIII Rule 1 CPC had expired.Before the High Court, the petitioner contended that she had never been served with summons in accordance with Order V CPC. According to her, she became aware of the proceedings only while obtaining certified copies in another connected litigation after the death of her son-in-law, who had been handling her legal affairs. She argued that although she had received a copy of the ex parte injunction order, no summons calling upon her to appear and file a written statement had ever been issued or served. The respondent, on the other hand, maintained that service of the injunction order and the plaintiff's affidavit under Order XXXIX Rule 3 CPC sufficiently established knowledge of the proceedings, thereby commencing the limitation period for filing the written statement. Court's Analysis: Justice Parihar observed that the controversy centred on a narrow but fundamental procedural question as to whether service of an interim injunction order be treated as service of summons so as to trigger the forfeiture provision contained in Order VIII Rule 1 CPC.Answering the question in the negative, the Court examined the trial court record and found that although summons had been directed to be issued, no summons had in fact ever been issued or served upon the defendant. What had been served was merely a copy of the ex parte injunction order passed under Order XXXIX Rules 1 and 2 CPC, it found.The Court clarified that under the 2020 Adaptation Order, the law in the Union Territory imposes an irrefutable forfeiture of the defendant's right to file a written statement following the expiry of 120 days from service. The Court unambiguously observed that the judicial authority to accept the same stands extinguished thereafter. Nevertheless, the Court hastened to observe that this penal consequence is not absolute as it is expressly predicated upon a condition precedent ie the valid service of summons which must be strictly proved before any such forfeiture can be invoked.Summons And Injunction Serve Different Legal PurposesDrawing a clear distinction between two procedural mechanisms, the Court held that Order V and Order XXXIX operate in entirely different fields.The Court observed that summons under Order V is a formal judicial command requiring the defendant to appear, answer the claim and file a written statement, while prescribing an elaborate statutory procedure for its issuance and service. Conversely, it explained that service under Order XXXIX Rule 3 merely informs the opposite party about an ex parte interim injunction and the documents on which it is based. “…The object of such service is merely to intimate the opposite party of the interim order and the material on the basis whereof it has been granted. Such service cannot, by any stretch of imagination, be treated as a substitute for the issuance and due service of summons under Order V CPC, which alone triggers the statutory period prescribed under Order VIII Rule 1 for filing the written statement” Justice Parihar remarked.He added,"The distinction between service of summons under Order V and service of an interim order under Order XXXIX Rule 3 is not merely procedural but substantive." The Court further observed that equating the two would amount to introducing into the statute something which the legislature had consciously omitted.Knowledge Of Proceedings Is Not Enough:The respondent relied upon Supreme Court precedent to argue that once a person has knowledge of proceedings, procedural defects in service should not invalidate subsequent action.Rejecting the submission, the High Court clarified that the Supreme Court's observations applied to cases involving irregular service, not complete absence of service. The Court noted that there was no material whatsoever to show that summons had ever been issued through the process-serving agency....

Mere Knowledge Of Suit Or Receipt Of Ex Parte Injunction Order Doesn't Trigger 120-Day Limit To File Written Statement: J&K&L High Court

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Mere Knowledge Of Suit Or Receipt Of Ex Parte Injunction Order Doesn't Trigger 120-Day Limit To File Written Statement: J&K&L High Court

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