Mangi Lal Son Of Shri Mangla vs Kana Ram Son Of Shri Bhairu Ram on 9 March, 2026

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    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

    SPONSORED

    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

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    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.

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    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

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    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,

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    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.

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    (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

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    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

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    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

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    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

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    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

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    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/

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