Rajasthan High Court – Jaipur
Mangi Lal Son Of Shri Mangla vs Kana Ram Son Of Shri Bhairu Ram on 9 March, 2026
[2026:RJ-JP:8653]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 2924/2026
Mangi Lal Son Of Shri Mangla, Resident Of Khatiyon Ki Dhani,
Shadurlapura, Tehsil Phulera, Distt. Jaipur (Rajasthan).
---Defendant No.1-Applicant-Petitioner
Versus
1. Kana Ram Son Of Shri Bhairu Ram, Resident Of Village
Mateda, Tehsil Phulera, District Jaipur (Rajasthan).
2. Bhanwar Lal Son Of Shri Bhairu Ram, Resident Of Village
Mateda, Tehsil Phulera, District Jaipur (Rajasthan).
3. Heera Lal Son Of Shri Bhairu Ram, Resident Of Village
Mateda, Tehsil Phulera, District Jaipur (Rajasthan).
4. Hanuman Son Of Shri Bhairu Ram, Resident Of Village
Mateda, Tehsil Phulera, District Jaipur (Rajasthan).
-------Plaintiff-Non-Applicant-Respondents
5. Hariprasad Son Of Shri Mangla, Resident Of Khatiyon Ki
Dhani, Shadurlpura, Tehsil Phulera, Distt. Jaipur (Raj.) At
Present Room No.5, Sarinath Badi Pawai Chowk, Mulund
Colony, Mulund, West Mumbai 400082.
---Defendant No.2-Applicant-Respondents
For Petitioner(s) : Mr. Shashi Kant Saini
For Respondent(s) :
HON'BLE MR. JUSTICE BIPIN GUPTA
Judgment
Date of hearing and conclusion of arguments 25.02.2026
Date on which the judgment was reserved 25.02.2026
Whether the full judgment or only the operative Full Judgment
part is pronounced
Date of pronouncement 09.03.2026
1. The present civil writ petition has been filed assailing the
judgment dated 27.01.2026, passed by learned Additional District
Judge No.1, Sambhar Lake, District Jaipur, in Civil Misc. Appeal
No.11/2025 (NCV No. 11/2025), whereby the learned Appellate
(Uploaded on 12/03/2026 at 11:58:32 AM)
(Downloaded on 12/03/2026 at 08:46:36 PM)
[2026:RJ-JP:8653] (2 of 11) [CW-2924/2026]
Court dismissed the appeal preferred by the defendant-petitioner
under Order 43 Rule 1 CPC and upheld the order dated
08.12.2025, passed by learned Senior Civil Judge, Sambhar Lake,
District Jaipur, in Civil Misc. Application No. 09/2023 (NCV No.
09/2023), whereby the application filed by the defendant-
petitioner under Order 9 Rule 13 read with Section 151 CPC was
rejected.
2. Briefly stated, the facts of the case are that the plaintiffs-
respondents instituted a suit for specific performance of an
agreement dated 10.07.1982 and for perpetual injunction against
Mangi Lal (the present petitioner) and Hariprasad on 20.02.2008.
Notices were issued to the defendants, including the present
petitioner, on 22.02.2008, and the matter was fixed for
23.02.2008. Upon holding that service was sufficient, the learned
Trial Court proceeded ex-parte against the defendants, including
the present petitioner on 23.02.2008 and posted the matter for
ex-parte evidence of the plaintiffs-respondents. Ultimately, the
suit was decreed ex-parte vide judgment dated 28.07.2022.
2.1 Thereafter, the defendant-petitioner filed an application under
Order 9 Rule 13 read with Section 151 CPC and Section 5 of the
Limitation Act, 1963, contending that there was no valid or
sufficient service effected upon him and that he acquired
knowledge of the decree only when notices in the execution
proceedings were served upon him on 05.05.2023. He further
submitted that immediately upon gaining knowledge of the
decree, he applied for certified copies on 08.05.2023, which were
supplied on 11.05.2023. Accordingly, he prayed for setting aside
of the ex-parte decree.
(Uploaded on 12/03/2026 at 11:58:32 AM)
(Downloaded on 12/03/2026 at 08:46:36 PM)
[2026:RJ-JP:8653] (3 of 11) [CW-2924/2026]
2.2 It was also alleged that a bare perusal of the notices allegedly
served upon applicants demonstrates that no proper or sufficient
service effected. It was also averred that defendant No. 2,
Hariprasad, had not been served as he had been residing in
Mulund, Mumbai, since 1990. It was further averred that neither
the father’s name nor the addresses of the alleged witnesses were
disclosed in the service report. The petitioner emphasized that it is
a settled principle of law that a suit should be decided after
affording both parties an adequate opportunity of hearing.
2.3. In reply to the said application, the plaintiffs-respondents
contended that the defendants had full knowledge of the pendency
of the suit as well as the decree. It was submitted that the wife of
the present petitioner had refused to accept the notices;
consequently, the notices were affixed at the petitioner’s residence
in the presence of two witnesses. It was further contended that
the defendants are siblings and were duly served, and thus had
knowledge of the proceedings.
2.4. After hearing both the parties, the learned Trial Court, vide
order dated 08.12.2025, dismissed the application filed under
Order 9 Rule 13 read with Section 151 CPC.
2.5 Aggrieved by the said order, the defendant-petitioner
preferred an appeal under Order 43 Rule 1 CPC, being Civil Misc.
Appeal No. 11/2025, which was also dismissed vide judgment
dated 27.01.2026.
3. Being aggrieved by the aforesaid order and judgment, the
petitioner has filed the present writ petition.
4. Learned counsel for the defendant-petitioner contended that
the impugned order and judgment passed by the learned Courts
(Uploaded on 12/03/2026 at 11:58:32 AM)
(Downloaded on 12/03/2026 at 08:46:36 PM)
[2026:RJ-JP:8653] (4 of 11) [CW-2924/2026]
below are illegal and erroneous, being contrary to the pleadings,
documents, and settled principles of law. It was submitted that
the learned Courts below have failed to properly appreciate the
legal aspects of the matter and passed the impugned order and
judgment in a superficial manner, rendering them non-speaking
orders.
4.1 Learned counsel for the defendant-petitioner further
contended that service has not affected in accordance with the
mandatory provisions of Order 5 Rule 17 CPC. It was argued that
as per Order 5 Rule 19 CPC, where a summons is returned under
Rule 17 CPC, the Court shall, if such return has not been verified
by the affidavit of the serving officer, require examination of the
serving officer on oath before proceeding ex-parte. However, in
the present case, the learned Courts below failed to examine the
process server regarding the alleged service upon the defendant-
petitioner on oath and thus committed illegality.
4.2 Learned counsel for the defendant-petitioner further submitted
that even assuming, though vehemently denied, that the
defendant was avoiding service, the procedure prescribed under
Order 5 Rule 20 CPC ought to have been followed. However, in the
instant case, none of the procedures laid down under the Code of
Civil Procedure were adhered to.
4.3 Learned counsel for the defendant-petitioner also contended
that the notices issued on 22.02.2008 bear an endorsement
stating that the petitioner’s wife (whose name was not mentioned)
refused to accept the notice, and therefore, the same was affixed
at the petitioner’s residence in the presence of witnesses namely
Dhanna S/o Ratana Jat and Ramnath S/o Bhagirath. However,
(Uploaded on 12/03/2026 at 11:58:32 AM)
(Downloaded on 12/03/2026 at 08:46:36 PM)
[2026:RJ-JP:8653] (5 of 11) [CW-2924/2026]
neither the addresses nor proper identification of the said
witnesses have been placed on record.
4.4 Learned counsel for the defendant-petitioner contended that
the learned Courts below have failed to appreciate the fact that
the petitioner never received any notice and there was no
occasion for refusal. The ex-parte proceedings were initiated on
23.02.2008 in a hasty and mechanical manner, in violation of the
provisions of Order 5 of CPC.
4.5 Learned counsel for the defendant-petitioner also submitted
that the petitioner came to know of the ex-parte decree only on
05.05.2023, upon receiving notice in the execution proceedings.
After obtaining certified copies of the record on 11.05.2023, the
petitioner promptly filed an application under Order 9 Rule 13 CPC
on 23.05.2023, within 18 days of acquiring knowledge of the
decree.
4.6 In light of the aforesaid submissions, learned counsel for the
defendant-petitioner urged that the order dated 08.12.2025 and
judgment dated 27.01.2026 are liable to be quashed and set
aside, and the application filed by the defendant-petitioner under
Order 9 Rule 13 CPC deserves to be allowed.
4.7 Learned counsel for the defendant-petitioner relied upon the
following judgments to buttress his arguments:
(i) C.N. Ramappa Gowda Vs. C.C. Chandregowda
(dead) by LRs & Anr.; 2012 (5) SCC 265.
(ii) Parimal Vs. Veena @ Bharti; (2011) 3 SCC 545.
(iii) G.P. Srivastava Vs. R.K. Raizada & Ors.; (2000) 3
SCC 54.
(Uploaded on 12/03/2026 at 11:58:32 AM)
(Downloaded on 12/03/2026 at 08:46:36 PM)
[2026:RJ-JP:8653] (6 of 11) [CW-2924/2026]
(iv) Bhagwan Singh & Ors. Vs. Ram Balak Singh & Anr.;
AIR 1988 Patna 166.
(v) Sambhunath Das Vs. Sirish Ch. Mohapatra; AIR 1985
Orissa 215.
(vi) Sushilkumar Mandanlal Ganediwal Vs. Vijaykumar
Mandanlal Ganediwal & Ors.; AIR 2019 Bombay 201.
5. Heard learned counsel for the defendant-petitioner and
perused the material available on record.
6. This Court observes that a notice was issued to the
defendant-petitioner on 22.02.2008, directing his appearance on
23.02.2008. This Court further finds that the process server
visited the defendant-petitioner’s house on 22.02.2008, where his
wife was present. She stated that her husband, Mangi Lal, had
gone to Phulera. It was also reported by the process server that
she refused to accept the notice; therefore, a copy of the notice
along with a copy of the plaint was affixed at the defendant-
petitioner’s house.
7. The process server, in accordance with the provisions under
Order 5 Rule 18 CPC, deposed to these facts on oath before the
Assistant Nazir. Subsequently, the notices were returned to the
Court. Considering the service to be sufficient, the learned Trial
Court proceeded ex-parte against the petitioner-defendant on
23.02.2008.
8. This Court further observes that a similar notice was served
on defendant No. 2, Hariprasad. Additionally, this Court finds that
the house was identified by two witnesses, whose names along
with their fathers’ names were disclosed by the process server. It
(Uploaded on 12/03/2026 at 11:58:32 AM)
(Downloaded on 12/03/2026 at 08:46:37 PM)
[2026:RJ-JP:8653] (7 of 11) [CW-2924/2026]
is also observed that in the application under Order 9 Rule 13
CPC, the same address was disclosed by the defendant-petitioner.
9. Moreover, this Court finds that the address of the
defendant-petitioner in the present writ petition corresponds with
the address mentioned in the notice sent to him. The address to
which the notices were sent has not been disputed before the
learned Trial Court. Once the address remains undisputed, the
subsequent question for consideration is whether the provisions of
Order 5 Rule 17 CPC and Order 5 Rule 19 CPC were duly complied
with or not.
10. This Court finds that, as per the provisions of Order 5 Rule
17 CPC, upon refusal by the wife of the defendant-petitioner to
accept service, the process server, in the presence of two
witnesses, affixed the notice as well as a copy of the plaint at the
address specified in the notice. Thereafter, the process server
returned the process to the Court through the Assistant Nazir,
after verification on oath.
11. Consequently, this Court concludes that the procedure
prescribed under Order 5 Rule 17 CPC was duly adhered to. So far
as the provisions of Order 5 Rule 19 CPC are concerned, it is noted
that the requirement to examine the process server on oath arises
only when the returned notices have not been verified on oath. In
the present case, the process server, in compliance with Order 5
Rule 18 CPC, verified the service on oath before returning the
notices.
12. Since the service was properly verified, there was no
requirement to examine the process server on oath prior to
proceeding ex-parte. Further, under Order 9 Rule 13 CPC, the
(Uploaded on 12/03/2026 at 11:58:32 AM)
(Downloaded on 12/03/2026 at 08:46:37 PM)
[2026:RJ-JP:8653] (8 of 11) [CW-2924/2026]
defendant-petitioner is required to establish bona fides. Both the
learned Courts below found that notices were also sent to the
petitioner after the ex parte order was granted, in accordance with
the provisions of Order 39 Rule 3 CPC. The said notice was served
on 14.07.2008 by the process server, namely; Ramavtar Meena.
13. So far as the argument regarding the non-compliance with
the procedure stated under Order 5 Rule 20 CPC is concerned, the
same cannot be accepted. The said provision pertains to
‘substituted service’, which is an exceptional mode of service to be
resorted in case where the summon cannot be served in ordinary
manner as provided under law. However, in the instant case, as
the service of notice was duly effected through other recognized
modes. Thus, the recourse to substituted service under Order 5
Rule 20 CPC is neither mandatory nor a condition precedent for
treating the service as valid. Hence, the contention that the
procedure prescribed under Order 5 Rule 20 CPC ought to have
been followed is misplaced and without merit.
14. This Court also observes that the suit remained pending from
2008 till 2022, when the ex-parte decree was passed. The
petitioner-defendant had ample opportunity to contest the suit
but, despite being aware of the proceedings and having being
served with the ex-parte order on 14.07.2008, the petitioner did
not appear. He waited until the decree was passed and only after
the execution proceeding were initiated, he filed an application
Order 9 rule 13 CPC, which this Court finds was rightly dismissed
by the learned Courts below.
15. This Court further notes that the defendant-petitioner has
failed to produce any evidence to rebut the presumption of proper
(Uploaded on 12/03/2026 at 11:58:32 AM)
(Downloaded on 12/03/2026 at 08:46:37 PM)
[2026:RJ-JP:8653] (9 of 11) [CW-2924/2026]
service, as recorded by the learned Trial Court, which observed
that no evidence had been adduced by the parties. Thus, when the
defendant-petitioner failed to discharge the initial burden, there
was no obligation on the respondents to produce the process
server as a witness.
16. This Court also finds no merit in the argument of the
defendant-petitioner that the names and addresses of the
witnesses were not mentioned. It is evident that the name and
fathers’ names of the witnesses were disclosed. As per the
provisions of Order 5 Rule 17 CPC, mentioning the address of
witnesses is not mandatory. Moreover, the petitioner did not
testify in the witness box to dispute the presence of the witnesses,
nor did he lead any evidence to support his contention.
17. With regard to the judgments rendered by the Hon’ble Apex
Court and various High Courts, on which defendant-petitioner has
heavily relied, it is pertinent to note the observations made in the
case of G.P. Srivastava (supra) and Primal (supra). In these
rulings, the Hon’ble Apex Court explicitly held that the phrase
‘prevented by any sufficient cause from appearing’ must be
construed in a liberal sense to ensure the attainment of justice.
However, it further clarified that, in the absence of a
demonstration of sufficient cause for the non-appearance of the
defendant on the date of hearing, the Court possesses no
authority to set aside an ex-parte decree.
17.1 The question of what constitutes ‘sufficient cause’ is a matter
of fact, requiring the Court to exercise its discretion, taking into
account the diverse and specific circumstances of each case. There
is no rigid, universal applicable formula. Consistent with this
(Uploaded on 12/03/2026 at 11:58:32 AM)
(Downloaded on 12/03/2026 at 08:46:37 PM)
[2026:RJ-JP:8653] (10 of 11) [CW-2924/2026]
principal, the judgments of other High Courts cited by the learned
counsel for the defendant-petitioner also evaluate the issue of
sufficient cause based on the facts and circumstances particular to
each case. Nevertheless, in the present matter, this Court is not
satisfied with the cause demonstrated by the defendant-petitioner
for his absence.
17.2 So far as the judgment of Ramappa Gowda (supra) is
concerned, the same pertains to a general principle stating that
the adjudication should be on merits and an ex-parte judgment
generally gives rise to multiplicity of proceedings. However, the
said observation does not lay down an absolute rule that every
ex-parte decree must necessarily be set aside irrespective of the
facts and circumstances of the case.
17.3 Moreover, the reliance placed by the learned counsel for the
defendant-petitioner on the cases of Bhagwan Singh (supra) and
Sambhunath Das (supra) is misplaced and misconceived as it is
pertinent to note that Order 5 Rule 19A CPC, which earlier
provided for simultaneous service of summons by registered post,
was deleted by the Code of Civil Procedure (Amendment) Act,
1999, with effect from 01.07.2002. In the present case, the suit
was instituted in the year 2008, much after the deletion of Order 5
Rule 19A CPC. Consequently, as the said provision is no longer a
part of the statute, it has no applicability to proceedings instituted
thereafter. Hence, the said cases are clearly distinguishable and
does not advance the case of the defendant-petitioner.
17.4 Lastly, the judgment rendered in the case of Sushilkumar
Ganediwal (supra) is concerned, the same does not squarely
applies to the present factual matrix as the said judgment is with
(Uploaded on 12/03/2026 at 11:58:32 AM)
(Downloaded on 12/03/2026 at 08:46:37 PM)
[2026:RJ-JP:8653] (11 of 11) [CW-2924/2026]
regard to the fact that whether the report of bailiff is a public
document or not as per the provisions of Section 74 of the Indian
Evidence Act, 1872. The said judgment in no manner help the
argument of the learned counsel for the defendant-petitioner.
18. Accordingly, this Court finds that neither the learned Trial
Court nor the learned Appellate Court committed any illegality in
passing the impugned order and judgment, and thus, no
interference under its writ jurisdiction under Article 227 of the
Constitution of India is warranted.
19. For the forgoing reasons, the present civil writ petition
stands dismissed. Accordingly, the judgment dated 27.01.2026,
passed by learned Additional District Judge No.1, Sambhar Lake,
District Jaipur, in Civil Misc. Appeal No.11/2025 (NCV No.
11/2025) and the order dated 08.12.2025, passed by learned
Senior Civil Judge, Sambhar Lake, District Jaipur, in Civil Misc.
Application No. 09/2023 (NCV No. 09/2023) is upheld.
20. Pending application(s), if any, also stands disposed of.
(BIPIN GUPTA),J
Sudha/
(Uploaded on 12/03/2026 at 11:58:32 AM)
(Downloaded on 12/03/2026 at 08:46:37 PM)
Powered by TCPDF (www.tcpdf.org)