2022 CLC 1529
(i) summons was not duly served on him; or
(ii) that he was prevented by any sufficient cause from appearing when the suit was called on for hearing.
Either of the aforesaid two conditions is to be fulfilled to set aside the ex parte decree. It is not essential that both the conditions should be satisfied simultaneously as the satisfaction of either of the conditions was sufficient in the eye of law, to recall the ex parte decree. In the present case, the ground alleged by the defendant to set aside the ex parte decree rested on the former condition, vis., that the summons was not duly served upon the defendant. The rule of procedure lay emphasis on due service of summons on a party so that such party was not deprived of its valuable right without providing an opportunity of defense.
: 2022 CLC 1529
The mode of effecting service of summons has been evolved within the framework of the provisions of Order V, C.P.C. Rules 10, 12, 13 and 15 are relevant rules to the mode of service. Rule 10 precisely provides that service of the summons shall be made by delivering or tendering a copy thereof to the defendant. When summons is served personally on the defendant by delivering or tendering its copy to him, ordinarily, it is deemed substantial compliance with the provisions relating to due service of the summons. Rules 12 and 13 provide a scheme of service through an agent of the defendant. Rules 15 next, lays down that where the defendant cannot be found and he has no agent to accept service, in that position, service may be made on any adult male member of his family who resided with him.
A perusal of the aforementioned provisions of the Code of Civil Procedure clearly shows that a summon is ordinarily to be served on the defendant personally. It can also be served through a male member of the family, if the said member is residing with the defendant and the defendant cannot be found nor is there any agent empowered to accept service on his behalf. It is further established as per the aforementioned rules that in a case where the serving officer delivers or tenders a copy of the summons to the defendant personally or to an agent or other person on his behalf, an acknowledgment in writing is to be obtained on the original summons. While proceedings under Rule 17, the Process Server is bound to indicate in his report that the defendant or his agent refused to sign the acknowledgment and he cannot find the defendant or his agent and then he has affixed a copy of the summons on the conspicuous part of the house where the defendant resides, the circumstances under which he has done it and the name and the address of the persons who identified the house in whose presence the copy was so affixed along with time. As per Rule 19 when a summon is returned under Rule 17, the Court is to examine the Serving Officer on oath touching his proceedings and after holding a further inquiry, if necessary, is to pass an order as to whether summons has been duly served or is to direct fresh service. While proceeding under rule 20 before passing of an order of substituted service, the Court is bound to record his satisfaction to the effect that there is reason to believe that the defendant is keeping out of the way to avoid service and thereafter the court is to order the service of summons through substituted modes in terms of rule 20.
A perusal of rule 20 would show that after the court satisfied itself that it is a case for substituted service, it shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house. This requirement has not been shown to have been complied with. It is further required that a copy was also to be affixed upon some conspicuous part of the house in which the defendant is known to have resided or carried on business, or in such other manner as the Court thinks fit. Substituted service has the same effect as personal service.
: 2022 CLC 1529
As per Article 164 of the Limitation Act, the period of limitation for filing of an application for setting aside of ex parte decree is thirty days in cases where the summons is duly served with effect from the date of decree and in cases where the summons is not duly served with effect from the date from the acquisition of the knowledge of the decree.
: 2022 CLC 1529
The rule of „audi alteram partem’, as a salutary rule, has gained much importance in civilized States of the world. It is equally a weighty rule in the administration of justice contemplated by injunctions of Islam. This is how it is insisted upon that no one should be deprived of civil liberties and property unless provided with due opportunity of hearing. In presence of consensus of the superior judiciary of the Sub-Continent, it is invariably deemed expedient not to punish a party on account of its minor negligence in defending an action in the court of law unless such negligence was found accompanied by a willful and deliberate act
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