Substituted Service Ordered Without Proper Attempts Requires Rehearing and Sets Aside Ex‑parte Decree

A bench comprising Justice Sandeep Jain, JJ., heard an appeal filed by the defendant challenging the refusal to recall an ex‑parte appellate judgment and the rejection of his application under Order 41 Rule 21 CPC. The single‑judge bench considered whether substituted service by publication and an ensuing ex‑parte decision in Civil Appeal No. 146 of 2011 were legally sustainable.

The Court allowed the first appeal, set aside the impugned order dated 23.5.2024, and quashed the ex‑parte judgment and decree dated 17.7.2019. The Court found that substituted service under Order V Rule 20 CPC had been ordered without sufficient material showing that ordinary service had been attempted or that the defendants were "keeping out of the way for the purpose of avoiding service." The Court noted that there was "no documentary evidence" of registered AD notices, process‑server reports, or affixation under Order V Rule 17 CPC and observed that the Ghaziabad court had not even attempted the procedure under Order V Rule 21 for service through the competent Court in Delhi. The Court, in its reasoning, observed: "From the above law laid down by the Apex Court and High Courts, it is evident that substituted service under Order V Rule 20 of the Code, is an exception to the normal mode of service and it can only be ordered by the Court if, it is of the belief, on the basis of material on record, that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary manner. It is further evident that the Court has to apply its mind to the facts and circumstances of the case and then it has to record its satisfaction that service on the defendant is not possible by normal mode and only then, the plaintiff/appellant can be permitted to effect substituted service by publication in local newspaper." The Court directed the first appellate court to rehear Civil Appeal No. 146 of 2011 afresh on merits within four months and ordered maintenance of status quo as to the disputed property.

Background

The dispute arose from O.S. No. 544 of 1997, in which plaintiffs sought possession and injunction; the trial court dismissed the suit on merits on 18.8.2011. The plaintiffs filed Civil Appeal No. 146 of 2011; on 30.11.2011 the appellate court permitted substituted service by publication on all respondents, relying on the appellants’ affidavit and concluding earlier notices had remained unserved. The appellate court later proceeded ex‑parte and, on 17.7.2019, allowed the appeal and set aside the trial decree, directing handover of possession.

The defendant/appellant (Subashchand/ Subhashchandra Gupta) filed Miscellaneous Case No. 71 of 2019 under Order 41 Rule 21 read with Section 151 CPC on 14.8.2019 to recall the ex‑parte judgment, averring that he remained unaware of the appeal because no registered notices or summons had been properly served and that substituted service through a local newspaper (which did not circulate in his Delhi locality) did not bring notice to him. The appellate court rejected the recall application by order dated 23.5.2024, reasoning that the defendant’s address was correct, publication had been effected and the defendant's post‑judgment conduct showed awareness.

On appeal, Justice Sandeep Jain examined the record and authoritative precedents — including Mrs. Payal Ashok Kumar Jindal, Smt. Yallawwa, Smruti Pahariya, and Messers Neerja Realtors — and reiterated that substituted service was an exception requiring recorded satisfaction on cogent material. The Court found absence of any registered AD receipts, postal registration slips, process‑server reports, or affixture evidence as mandated by Order V Rule 17; it also observed that the Ghaziabad court had not employed Order V Rule 21 to send service to the competent Delhi court. The appellate court’s presumption that the defendant had notice was held to be "a figment of imagination" and legally unsustainable. Consequently, the Court allowed the recall application, set aside the ex‑parte appellate judgment, restored the appeal to its original number and directed a fresh hearing on merits within four months, while directing parties to maintain status quo in respect of the disputed property.

Case Details: Case No.: FIRST APPEAL FROM ORDER No. 1370 of 2024 Case Title: Subhashchandra Gupta v. Ajay Kumar Sharma And 5 Others Appearances: For the Petitioner(s): Syed Fahim Ahmed, Advocate; Pramod Jain, Senior Counsel (appearing) For the Respondent(s): Devid Kumar Singh, Advocate; Prateek Rai, Advocate