In FAO (OS) (COMM) 51/2020-DEL HC- If Court is satisfied that defendant had notice of date of hearing, then ex-parte decree cannot be set aside under Order 9 Rule 13 of CPC: Delhi HC Justices Rajiv Shakdher & Poonam A. Bamba [05-05-2022]

Read Order: M/S. MAINI SCAFFOLD SYSTEMS AND ORS v. Mr. S. K JAIN AND ORS 

Tulip Kanth

New Delhi, May 16, 2022: The Delhi High Court has held that the knowledge of pendency of the proceedings or date of hearing in the suit couldnot be imputed to the defendants when the summons sent through all the modes could not be delivered/served because they had shifted from the given address on which the summons was sent.

Referring to Order 9 Rule 13 of CPC, the Division Bench of Justice Rajiv Shakdher and Justice Poonam A. Bamba affirmed, “From the plain reading of the second proviso to rule 13, it is clear that the court shall not set aside an ex-parte decree, if it is satisfied that the defendant had notice of the date of hearing.”

In this matter, the appellants had challenged the impugned order of the Single Judge mainly on the ground that the the summons/notices issued to the appellants and second respondent were never served upon them as they had shifted on the other address prior to the issuance/delivery of summons. It was submitted that as no one appeared on behalf of the defendants and the second respondent and no written statement was filed by them, the Single Judge passed a decree in favour of the plaintiff-first respondent. It is against this order that the present appeal was filed.

The Bench held that due service of summons on the defendants & the second respondent was not made out on the ground that the status indicated was ‘Attempted’ and not ‘delivered’ and such delivery report was highly suspect in the light of the fact that the summons sent through all the modes were returned with the report ‘Left Without Address’.

Saying that the summons sent through all the modes could not be delivered/served on any of the defendants-appellants and the second respondent, the Division Bench set aside the order of the Single Judge.