Substituted Service Is Not Due Service Under Law: Calcutta High Court Revives Ex Parte Decree, Sends Delay-Cured Challenge Back for Trial

“Substituted service under Order 5 Rule 20 CPC cannot be treated as due service for limitation purposes under Article 123 of the Limitation Act” — With this emphatic observation, the Calcutta High Court reinstated an ex parte eviction decree that had been set aside without trial, while upholding the condonation of delay filed amidst the COVID-19 limitation suspension. Justice Hiranmay Bhattacharyya carved a fine line between procedural fairness and evidentiary rigour, remanding the matter for adjudication on merits rather than allowing the setting aside of the decree without proof.

“COVID Extension Shields Delay, But Not the Need for Proof”: Appellate Court Erred in Nullifying Ex Parte Decree Without Evidence

The Court was dealing with a revisional petition under Article 227 of the Constitution challenging an appellate order that had set aside an ex parte decree in an ejectment suit without allowing the trial court to examine the matter on merits. The original suit was decreed ex parte on 17.09.2021, and the opposite party filed a Miscellaneous Case under Order 9 Rule 13 CPC only on 13.09.2022—accompanied by an application for condonation of delay.

The Trial Court dismissed the Misc. Case, calculating a delay of 341 days, which it held was not satisfactorily explained. The Appellate Court reversed that view, condoning the delay and directly setting aside the decree.

Justice Bhattacharyya found the appellate order partly flawed, stating: “It is well settled that it is only after the delay is condoned, the Court acquires the jurisdiction to enter into the merits of the Miscellaneous Case under Order 9 Rule 13 of the Code… The facts pleaded in the Misc. Case have to be proved in accordance with law.” [Paras 34, 36]

The Court restored the ex parte decree and remanded the Misc. Case to the Trial Court, remarking that no evidence had been led to justify the setting aside of the original judgment.

“Suo Motu Orders of Supreme Court Gave Parties 90 Days from 01.03.2022”: Trial Court Erred in Computing 341-Day Delay

On the crucial issue of limitation, the High Court firmly held that the Trial Court misapplied the law by failing to give effect to the Supreme Court’s suo motu extension of limitation during the COVID-19 pandemic.

“In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period… all persons shall have a limitation period of 90 days from 01.03.2022.” [Para 16 quoting Supreme Court’s order in M.A. No. 21 of 2022]

Applying this, the Court held:

“The Miscellaneous Case under Order 9 Rule 13 of the Code was filed on 13.09.2022, i.e., three months after the expiry of 90 days from 01.03.2022… The finding of the learned Trial Judge that the Misc. Case was filed with a delay of 341 days cannot be supported.” [Paras 21–22]

Accordingly, the delay was held to be properly condoned by the appellate court, and that part of the judgment was upheld.

“Explanation to Article 123 Makes It Clear: Substituted Service Does Not Start the Clock”

A critical point of law clarified by the Court was that the service of summons by newspaper publication under Order 5 Rule 20 CPC could not trigger the limitation period under Article 123 of the Limitation Act.

“Explanation to Article 123 of the Limitation Act states that for the purpose of the said Article, substituted service under Rule 20 of Order V shall not be deemed to be due service.” [Para 26]

“To the mind of this Court, the learned Judge of the appellate Court was right in holding that the substituted service shall not be deemed to be due service.” [Para 27]

This finding gave the opposite party the benefit of computing limitation from the date of actual knowledge of the decree—not the date of the decree itself—further shielding the delay.

“Pleading Is Not Proof”: No Evidence Led to Justify Setting Aside of Ex Parte Decree

Justice Bhattacharyya made it clear that while procedural timelines can be relaxed, the factual burden of establishing non-service or sufficient cause under Order 9 Rule 13 CPC remains:

“It is not in dispute that the opposite parties herein did not adduce any evidence in support of the case made out in the Misc. Case… The facts pleaded… have to be proved in accordance with law.” [Para 36]

The Court thus found fault with the appellate court for setting aside the ex parte decree outright, instead of remanding the matter after condoning delay:

“After condoning the delay, the learned Judge of the Appellate Court ought to have remanded the Misc. Case… for deciding the same on merit.” [Para 35]

“Prior Knowledge Must Be Proved, Not Presumed”: Presumption of Service Rejected in Light of Substituted Publication

The petitioners contended that the opposite party had knowledge of the proceedings, including through summons refused by the defendant's wife and through paper publication. The Court rejected that assertion, stating:

“Without venturing to decide whether the preconditions for substituted service were satisfied… it is sufficient to note that substituted service shall not be deemed to be due service under Article 123.” [Para 25]

Additionally, as the petitioners did not object to the defendant’s claim of lack of knowledge in the Section 5 Limitation Act application, the Court treated the factual claim as uncontroverted:

“The petitioner did not file any objection… The statement made… with regard to non-service of summons and the date of knowledge of the ex parte decree remains uncontroverted.” [Para 29]

“Condonation of Delay is the Rule, Not the Exception — Unless Negligence or Mala Fides Is Shown”

The Court reaffirmed the liberal interpretation of "sufficient cause" for condoning delay, citing Sesh Nath Singh v. Baidyabati Sheoraphuli Coop. Bank Ltd.:

“Whether the explanation furnished… would constitute ‘sufficient cause’ or not would depend upon facts of each case. There cannot be any straightjacket formula… Acceptance of explanation furnished should be the rule and refusal an exception…” [Para 31]

Noting the absence of any culpable delay or mala fide conduct, the High Court concluded:

“It is not a case that the delay occasioned on account of culpable negligence or on account of mala fides.” [Para 32]

Final Verdict: Delay Condoned, Ex Parte Decree Revived, Misc. Case to Be Tried on Merits

The judgment reached a middle path: “C.O. 924 of 2024 stands allowed in part… The portion of the order dated February 19, 2024 whereby the ex parte decree… was set aside is accordingly set aside. The Misc. Case No. 126 of 2022 stands restored… and is directed to be considered afresh on merits… The portion of the order allowing the application under Section 5 of the Limitation Act is not interfered with.” [Para 44]

The Court did not comment on the other precedents cited by parties, as they had no direct application to the present facts. There was no order as to costs.

“Litigants Must Prove What They Plead”: Court’s Message Clear on Setting Aside Ex Parte Decrees

This decision underscores a clear legal message — while the courts will protect procedural fairness, including by extending time during extraordinary circumstances like a pandemic, a party seeking to undo a judgment must step into the witness box and prove its case.

Date of Decision: 26th September 2025