The Madhya Pradesh High Court at Jabalpur allowed an appeal challenging the dismissal of an application under Order 9 Rule 13 CPC to set aside an ex-parte judgment and decree dated 28 June 2007 in Civil Suit No. 517-A/2006 for specific performance.
The appellants contended that they were wrongly proceeded ex-parte on 22 December 2006 as the summons had not been personally served. The process server admitted in cross-examination that the appellant’s alleged signature on the summons was not obtained in his presence; instead, a boy, whose identity was unknown, had taken the summons inside and returned it signed. The High Court found this procedure contrary to the requirements of Order 5 CPC and the Madhya Pradesh Civil Court Rules, which mandate personal service unless substituted service is ordered.
Rejecting the respondent’s argument that other family members’ service was sufficient, Justice Deepak Khot held that service must be on each defendant personally or through a legally recognised agent, and service on an unidentified intermediary could not be presumed valid. The Court also observed that the appellant had sufficient cause for non-appearance, satisfying the criteria under Order 9 Rule 13 CPC as explained in Parimal v. Veena (2011) 3 SCC 545.
Consequently, the High Court set aside the 2007 ex-parte decree and remitted the case to the trial court to proceed from the stage prior to the appellant being declared ex-parte. The parties were directed to appear before the lower court on 1 September 2025, with instructions to avoid unnecessary adjournments, noting the matter’s pendency since 2006.
Appearance:
Shri Sanjay Agrawal Senior Advocate with Ms.Neerja Agrawal and Shri Yash Soni Advocate for the appellant.
Ms. June Choudhary Senior Advocate with Ms. Jayalakshmi Iyer, Shri Shikar Jat and Shri Ratnesh Kumar Yadav – Advocates for the respondent No.1.
Shri Amit Vikram Pandey – Panel Lawyer and Shri Aditya Choubey – Government Advocate for respondent/State.
Shri Shafiqullah – Advocate for the respondent No.14
