Ex Parte Decree Can't Be Set Aside On Mere Irregularity In Service If Defendant Had Notice And Opportunity To Appear: Jharkhand High Court

The Jharkhand High Court has held that an ex parte decree cannot be set aside under Order IX Rule 13 CPC merely on allegations of irregularity in service of summons where the defendants had knowledge of the proceedings and sufficient opportunity to appear before the Court.A Single Judge Bench of Justice Sanjay Kumar Dwivedi was hearing a Second Appeal filed against the judgment dated 23.03.2026 passed by the Additional Judicial Commissioner-XVII, Ranchi in Civil Appeal No. 70 of 2024 affirming an ex parte decree passed in Original Suit No. 576 of 2023.The dispute concerned 10 decimals of land under Plot No. 64, Khata No. 56 situated at Mauza-Datma, Ranchi. The original suit had been instituted by Md. Salim Khan seeking declaration of title on the basis of Sale Deed No. 5607 dated 14.11.1945 and consequential reliefs relating to possession over the suit property.The appellants contended before the High Court that the suit had been decreed ex parte without proper service of notice and that they became aware of the decree only upon receiving notice in execution proceedings. It was argued that the ex parte proceedings deprived them of an opportunity to contest the matter and therefore the decree deserved to be interfered with.The appellants further sought to raise disputes regarding title and possession over the land, contending that portions of the property had been purchased by their predecessor through subsequent sale deeds and that houses had been constructed under the Pradhan Mantri Aawas Yojana.After examining the record, the High Court noted that both the Trial Court and the First Appellate Court had concurrently found that the appellants were aware of the proceedings but failed to appear. While dealing with the law governing ex parte decrees, the Court observed:“In view of above, there is no doubt that ex-parte decree against the defendant has to be set aside if the parties satisfy the court that summons was not duly served or has prevented by sufficient cause from appearing when the suit was called for hearing, however, it is equally well settled that the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court.”The Court further emphasized the mandatory nature of the second proviso to Order IX Rule 13 CPC. The Bench observed:“The legislature in its wisdom, made the second proviso mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein…”Explaining the test applicable under Order IX Rule 13 CPC, the Court held:“Under Order IX Rule 13 CPC, the test has to be applied as to whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so…”The Court noted that the First Appellate Court had specifically found that the appellants had knowledge of the suit and despite proper notice failed to contest the proceedings. Accordingly, the Court held that no perversity existed in the ex parte proceedings conducted by the Trial Court.The High Court further declined to re-appreciate evidence concerning title and possession, reiterating that under Section 100 CPC a second appeal lies only on substantial questions of law and not for reassessment of concurrent factual findings. Holding that no substantial question of law arose for consideration, the Court dismissed the Second Appeal.Case Title: Ram Kishun Mahto and Anr v. Salim Khan and Ors.Case Number: Second Appeal No. 136 of 2026.Appearance: Mr. Ayush Aditya for the Appellants. Mr. O.P. Tiwari and Mr. Mukul Kr. Singh for the State. Mr. Avishek Prasad for the Respondent.Click Here To Read/Download Order

Ex Parte Decree Can't Be Set Aside On Mere Irregularity In Service If Defendant Had Notice And Opportunity To Appear: Jharkhand High Court

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Ex Parte Decree Can't Be Set Aside On Mere Irregularity In Service If Defendant Had Notice And Opportunity To Appear: Jharkhand High Court

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