OV R17 CPC | No Service Of Summons If Process Server Does Not Affix Notice On Door Or Conspicuous Part Of Defendant's Address: MP High Court

The Madhya Pradesh High Court, Indore Bench recently held that the process server not affixing notice as per the provision under Order V Rule 17 CPC would be deemed to be an illegality and that it cannot be said to be an irregularity in the context of the second proviso to Order IX Rule 13 CPC.

The bench comprising Justice Subodh Abhyankar further observed that in absence of non-compliance of affixing the notice, the service of summons on the Defendant ought to be treated as non-service-

On due consideration of submissions and on perusal of the record, testing the facts of the case on hand on the anvil of the aforesaid dictum of the Supreme Court, this Court finds that so far as the service of notice on the defendant Nos.3 and 4 is concerned, admittedly, the process server has tried to serve them through Ex.D/7 and D/9, which clearly reveal that process server has not tried to affix the notice as provided under Order 5 Rule 17 of CPC, which cannot be said to be an irregularity, and in fact, it should be deemed to be an illegality, and as has been held by the Supreme Court that in the absence of affixture of notice, the service of summons on the defendant should be treated as non-service, this Court is of the opinion that learned Judge of the District Appellate Court has committed no illegality or jurisdictional error in reversing the order passed by the Civil Judge and remanding the matter back, and thus, no interference is called for.

Facts of the case were that the Petitioner had instituted a suit for declaration, possession and mesne profit against the Respondents. Notices were issued to the Respondents/Defendants but they did not join the proceedings. The trial court proceeded with the suit and passed the decree ex-parte. Thereafter, the Respondents moved an application under Order IX Rule 13 CPC for setting aside the decree passed ex-parte but the same was rejected by the trial court. Consequently, the Respondents appealed the matter before the lower appellate court and the same was allowed on the ground that the Respondents/Defendants were not served notice. Aggrieved, the Petitioners moved the Court.

The Petitioners submitted before the Court that the lower appellate court had erred in not appreciating the second proviso to Order IX Rule 13 CPC. It was argued that as per the provision, no court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is not satisfied that the Defendant had notice of the date of hearing and had sufficient time to appear and answer Plaintiff's claim.

Per contra, the Respondents argued that no interference was called for in the impugned order passed by the lower appellate court. It was asserted that as per the provisions under Order V Rule 17 CPC, if the process server fails to affix the notice, it ought to be assumed that the Defendants were not served at all.

Examining the submissions of parties and documents on record, the Court was in agreement with the arguments put across by the Respondents. Placing reliance on the decision of the Supreme Court in Sushil Kumar Sabharwal v. Gurpreet Singh, it noted that pursuant to the provision under Order V Rule 17 CPC, it was mandatory for the process server to affix the notice. The Court observed that since there was non-compliance of Order V Rule 17 CPC, it could not be held that the Respondents were served notice.

With the said observations, the Court found the petition to be sans merit and accordingly, the same was dismissed.

Cause Title: Gajraj Singh v. Hira Singh & Ors. [C.R. 27/2013]

Case Citation: 2023 LiveLaw (MP) 66

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