Affixation Without Witness Signature is No Service at All: Rajasthan HC Quashes 23-Year-Old Ex-Parte Decree, Orders Fresh Trial

“Appeal Under Section 96(2) CPC is a Substantive Right — Cannot be Denied for Not Filing Order 9 Rule 13 Application”, Rajasthan High Court set aside three concurrent orders — including a 23-year-old ex-parte decree dated 09.05.2002 — after finding that summons service via affixation had not complied with Order 5 Rule 17 CPC.

Justice Anoop Kumar Dhand held that failure to obtain a witness signature identifying the house renders affixation incomplete service, making the ex-parte proceedings unsustainable. The Court also reaffirmed that an appeal under Section 96(2) CPC is a substantive statutory remedy and may be pursued independently of an application under Order 9 Rule 13 CPC.

The dispute began in 1999 when the respondents filed a revenue suit for declaration and permanent injunction under Sections 88, 89, and 188 of the Rajasthan Tenancy Act, 1955 before the Assistant Collector, Bayana.

Ram Kishan, the defendant, initially filed a written statement. The suit was twice dismissed in default — first on 19.07.1999, then on 30.03.2000 — before being restored on appeal by the Revenue Appellate Authority (RAA) on 23.11.2001 with directions to decide it on merits after hearing both sides.

Following remand, fresh summons were issued. The process server reported affixing them to the petitioner’s house, but without any witness signature confirming the house’s identity. The petitioner did not appear, leading to ex-parte proceedings on 08.04.2002 and an ex-parte decree on 09.05.2002.

An appeal under Section 96(2) CPC to the RAA was dismissed on 21.07.2004 on both merits and technical grounds, including the incorrect finding that no written statement was on record. A second appeal to the Board of Revenue met the same fate on 22.09.2020, prompting the present writ petition.

Right to Appeal Under Section 96(2) CPC

Justice Dhand emphasised that the right to appeal against an ex-parte decree is statutory and substantive:

“The defendant cannot be deprived of the statutory right merely on the ground that he did not file any application under Order 9 Rule 13 CPC.”

The Court rejected the respondents’ argument that the appeal was not maintainable because the petitioner had sought only remand rather than contesting the decree’s merits, noting that the memo of appeal did challenge the decree substantively.

Defective Service Under Order 5 Rule 17 CPC

The Court reproduced Order 5 Rule 17 CPC and stressed that where summons are served by affixation, the process server must:

1. Use due diligence to locate the defendant.

2. Affix the summons in a conspicuous place at the residence.

3. Record the name and address of the person identifying the house and obtain their signature.

In this case: “Without verifying the address of the petitioner through an independent witness… the Process Server has affixed the notices… On the basis of such unverified report, the Trial Court treated the service as complete.”

The Court held that service was incomplete and that the trial court ought not to have proceeded ex-parte.

Violation of Natural Justice

Citing the audi alteram partem principle, the Court concluded that depriving the petitioner of a hearing due to defective service rendered the decree unsustainable:

“The petitioner was prevented by sufficient cause of not having knowledge about the suit… the ex-parte judgment amounts to a violation of the principles of natural justice.”

All three impugned judgments — 09.05.2002 (Assistant Collector), 21.07.2004 (RAA), 22.09.2020 (Board) — were quashed. The case was remitted to the Assistant Collector for de novo adjudication, with directions to frame issues and allow both sides to lead evidence.

Given the matter’s pendency since 1999, the trial court was asked to conclude proceedings within two years from receipt of the High Court’s order.

Date of Decision: 22 July 2025