Delhi District Court
Khem Das Vaishnav vs Chanchal Devi Jain on 5 May, 2026
IN THE COURT OF DR. SAURABH KULSHRESHTHA,
DISTRICT JUDGE -4, SOUTH DISTRICT, SAKET COURT,
NEW DELHI
MCA No: 16/2026
CNR No. DLST01-009767-2024
Shri Khem Das Vaishnav
S/o Shri Girdhari Das Vaishnav
R/o 114/459, Bholi Nagar,
Masjid Moth
South Delhi - 110049 ......... Appellant
Versus
Smt. Chanchal Devi Jain
(Through LRs)
(i) Umesh Chand Jain
S/o Late Smt. Chanchal Devi Jain
R/o 1675, 1st Floor, Dariba Kala
Chandni Chowk,
Delhi - 110006.
(ii) Shri Yogesh Chand Jain
S/o Late Smt. Chanchal Devi Jain
R/o L-1, 1st Floor, NDSE, Part-II,
New Delhi - 110049.
(iii) Ms. Madhu Jain
W/o Shri Abhay Jain
R/o 1K A 17, Behind Bank of Baroda,
Jawahar Nagar,
Jaipur, Rajasthan.
MCA No. 16/2026 Page No. 1 of 11
Khem Das Vaishnav v. Chanchal Devi Jain (Through LRs)
(iv) Ms. Sudha
D/o Shri Vushal Singh Nahata
R/o Natural Green Block-9,
Flat No. 5-D, BD-37, Ravindra Pally, Rahaghat,
Gopalpur (M), Prafulla Kanan North 24
Parganan, West Bangal - 700101.
(v) Ms. Vandana Rkyan
W/o Shri Ashok Rakyan
R/o A-329, 3rd Floor,
Defense Colony,
New Delhi - 110024.
(vi) Ms. Varsha
W/o Shri Mahender Kumar Jain
R/o 658, Aadarsh Nagar,
Opp. Sewa Sadan, Jawahar Nagar,
Jaipur, Rajasthan - 302004.
(vii) Shri Hitsh Nahata @ Hitesh Kumar Jain
S/o Shri Umesh Kumar Jain
R/o 1675, Dariba Kalan,
Chandni Chowk,
Delhi - 110006. .......Respondents
Date of institution of the appeal : 28.08.2024
Date on which judgment was reserved : 21.04.2026
Date of decision : 05.05.2026
Decision : Appeal Dismissed
JUDGMENT
1. This is a Misc. Civil Appeal under Section 104 and Order XLIII Rule 1 (d) of the CPC preferred by the appellant/ defendant MCA No. 16/2026 Page No. 2 of 11 Khem Das Vaishnav v. Chanchal Devi Jain (Through LRs) against the impugned order dated 02.05.2023 passed by the Ld. Senior Civil Judge, South District, Saket Courts, New Delhi in Civil Suit No. 1093/2019 titled as Smt. Chanchal Devi Jain v. Khem Dass Vaishnav whereby the application under Order IX Rule 13 CPC moved on behalf of the appellant/ defendant was dismissed.
2. The facts leading to the present appeal are that the respondent/ plaintiff had filed a suit for recovery of possession and arrears of rent/ damages/ mesne profits against the appellant/ defendant on the premise that the appellant/ defendant is a tenant in the suit property whose tenancy has been determined. Summons for settlement of issues were issued to the defendant, however as per the report of the process server, the son of the defendant who was found present at the suit property, refused to accept the summons on 18.12.2019. Vide order dated 20.12.2019 the Ld. Trial Court observed that the defendant is deemed to have been served on 18.12.2019. The right of the defendant to file written statement was closed on 11.02.2020 and the suit was proceeded ex parte qua the defendant on 29.01.2021. Afterwards, vide ex-parte judgment dated 04.03.2021 the suit was decreed and a decree for recovery of possession, arrears of rent and damages/ mesne profits was passed in favour of the plaintiff and against the defendant.
3. The appellant/ defendant, afterwards, filed an application under Order IX Rule 13 CPC on 07.11.2022 for setting aside of the ex parte judgment and decree dated 04.03.2021. The appellant/ defendant MCA No. 16/2026 Page No. 3 of 11 Khem Das Vaishnav v. Chanchal Devi Jain (Through LRs) submitted that he was not properly served with summons in the suit and no process server ever visited his shop or house. The appellant/ defendant further submitted that the ex parte judgment and decree dated 04.03.2021 came to his knowledge only on 10.10.2022, when the respondent/ plaintiff along with the Court Bailiff visited his shop. The appellant/ defendant further submitted that he was a tenant in the suit property and was running a photostat and stationary shop. The appellant/ defendant, accordingly, prayed for setting aside of the ex-parte judgment and decree in question.
4. The respondent/ plaintiff filed reply to the said application and prayed for dismissal of the said application.
5. The Ld. Trial Court vide order dated 02.05.2023 dismissed the application under Order IX Rule 13 CPC of the appellant/ defendant on the ground that the limitation period is to be reckoned from the date of service of summons i.e. December, 2019 and the application having been filed on 07.11.2022, the same is clearly barred by the law of limitation. The Ld. Trial Court further observed that summons was deemed to have been served on account of refusal on the part of the son of the appellant/ defendant to accept service and the mere fact that the process server failed to serve the summons by way of affixation in terms of Order V Rule 17 CPC is a procedural irregularity which does not vitiate the service. The Ld. Trial Court further held that the son of the appellant/ defendant was made aware of the case and therefore the ex-
MCA No. 16/2026 Page No. 4 of 11Khem Das Vaishnav v. Chanchal Devi Jain (Through LRs) parte judgment and decree in question cannot be set aside in view of the second proviso to Rule 13 of Order IX CPC.
6. The impugned order dated 02.05.2023 passed by the Ld. Trial Court has been assailed by the appellant/ defendant by way of the present appeal.
7. I have heard the Ld. Counsels for the parties and have given due consideration to their rival contentions and perused the record.
8. Ld. Counsel for the appellant/ defendant has contended that the appellant/ defendant was not properly served with summons in the suit and no process server ever visited his shop or house. He has further contended that the son of the appellant/ defendant was a student and there was no occasion for him to be present at the suit property/ shop. He has further argued that even if it is assumed that the appellant/ defendant was not found at the suit property, the process server could have visited the suit property again. It has further been vociferously contended that in case of non-availability of the appellant/ defendant at the suit property or in the eventuality of alleged refusal by the son of the appellant/ defendant to accept service of summons, the process server was required to mandatorily affix the summons at a conspicuous place at the suit property in terms of Order V Rule 17 CPC and in the absence of the same, the summons cannot be deemed to have been duly served. He has placed reliance on the judgment titled as Sushil Kumar Sabharwal v.
MCA No. 16/2026 Page No. 5 of 11Khem Das Vaishnav v. Chanchal Devi Jain (Through LRs) Gurpreet Singh, (2002) 5 SCC 377. Accordingly, he has prayed that the impugned order dated 02.05.2023 passed by the Ld. Trial Court be set aside; the application under Order IX Rule 13 CPC be allowed; the ex- parte judgment and decree dated 04.03.2021 be also set aside; and the appellant/ defendant be permitted to contest the suit.
9. Vide order dated 28.11.2024, one week's time was given to the respondent/ plaintiff to file reply to the appeal, however, no reply was filed. In the mean-time, the respondent/ plaintiff expired and her LRs were substituted in the present appeal. No reply to the appeal was filed on behalf of the LRs of the respondent as well. Ld. Counsel for the LRs of the respondent straightaway addressed arguments on the appeal.
10. Ld. Counsel for the LRs of the respondent has argued that the order of the Ld. Trial Court is a well-reasoned order and there is no merit in the present appeal. He has accordingly prayed for dismissal of the present appeal.
11. Adverting to the facts of the present case the process server reported that on 18.12.2019 he had reached at the suit property and he met the son of the appellant/ defendant who did not disclose his name and stated that his father had gone out of Delhi and he refused to accept the summons. This refusal was treated as due service by the Ld. Trial Court and afterwards the suit was proceeded ex parte qua the appellant/ defendant as none appeared on his behalf.
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12. Further, while considering the application under Order IX Rule 13 CPC the Ld. Trial Court observed that the failure on the part of the process server to affix the summons at the suit property was a mere irregularity and the second proviso to Rule 13 of Order IX CPC provides that an ex parte decree cannot be set aside on the ground that there was an irregularity in the service of summons if the Court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim; and that the son of the defendant had been made aware of the details of the case; and therefore the application under Order IX Rule 13 CPC could not be allowed.
13. It may be noted that in the present case the refusal to accept the summons was not on the part of the defendant; and in fact, the defendant was not even found present at the suit premises. Therefore, it was incumbent upon the process server to have served the summons by way of affixation in view of the non-availability of the defendant and refusal on the part of his son to accept the summons, in terms of the provisions of Order V Rule 17 CPC. In view of the failure on the part of the process server to affix the summons, the so-called deemed service on account of refusal cannot be treated as due service. Reference may be made to the judgments titled as Sushil Kumar Sabharwal v. Gurpreet Singh, (2002) 5 SCC 377; Madan v. Ramavati Ramesh Chauvan, 2019 SCC OnLine Bom 1470 and Manju v. Prakash, 2013 SCC OnLine Bom 1034 in this respect.
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14. Further, in respect of the applicability of the second proviso to Rule 13 of Order IX CPC the Hon'ble Supreme Court has observed in the judgment titled as Sushil Kumar Sabharwal v. Gurpreet Singh, (2002) 5 SCC 377 that:
"11. The High Court has overlooked the second proviso to Rule 13 of Order 9 CPC, added by the 1976 Amendment which provides that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. It is the knowledge of the "date of hearing"
and not the knowledge of "pendency of suit" which is relevant for the purpose of the proviso abovesaid. Then the present one is not a case of mere irregularity in service of summons; on the facts it is a case of non-service of summons....."
15. Adverting to the facts of the present case, the process server has nowhere specifically reported that he had clearly and unequivocally informed the son of the appellant/ defendant about all the requisite details of the present case including the details of the Court and the next date of hearing. Therefore, it cannot be presumed that the appellant/ defendant was aware of the details of the case including the details of the court and the next date of hearing. Moreover, it is not a case of irregularity in service of summons, but a case of non-service of MCA No. 16/2026 Page No. 8 of 11 Khem Das Vaishnav v. Chanchal Devi Jain (Through LRs) summons. Accordingly, the second proviso to Rule 13 of Order IX CPC cannot be pressed into operation.
16. It is further clear that since the summons was not duly served upon the appellant/ defendant, therefore the limitation period for filing the application under Order IX Rule 13 CPC was to be reckoned from the date of knowledge of the decree and not from the date of purported service of summons. The appellant/ defendant has contended that he came to know about the passing of the ex-parte decree only on 10.10.2022, when the plaintiff along with the court bailiff came to the suit property to recover the possession of the suit property. The application Order IX Rule 13 CPC was subsequently filed on 07.11.2022 and therefore the same was within limitation.
17. The appellant/ defendant therefore has a good case on merits in the present appeal.
18. However, it is seen that the impugned order dismissing the application under Order IX Rule 13 CPC was passed by the Ld. Trial Court on 02.05.2023. Initially the appellant filed RCA DJ No. 34/2023 (under section 96 CPC) assailing the impugned order dated 02.05.2023. The said RCA DJ No. 34/2023 was e-filed on 15.07.2023 and registered on 18.07.2023. Subsequently, vide order dated 31.07.2024 the said RCA DJ No. 34/2023 was dismissed as withdrawn with liberty to file fresh appeal in terms of Section 104 and Order XLIII Rule 1 (d) of the CPC.
MCA No. 16/2026 Page No. 9 of 11Khem Das Vaishnav v. Chanchal Devi Jain (Through LRs) Thereafter the appellant preferred the present appeal in terms of Section 104 and Order XLIII Rule 1 (d) of the CPC which was e-filed on 24.08.2024 and was registered on 28.08.2024.
19. The limitation period for filing the present appeal in terms of Article 116 (b) of the Schedule to the Limitation Act is thirty days from the date of the impugned order. Thus, the limitation period to file the present appeal has already expired. No reasonable cause has been established by the appellant/ defendant as to why the appeal was not preferred during the period of limitation. The appellant/ defendant has miserably failed to tender any explanation for the further delay in filing the present appeal. Even no formal application for condonation of delay has been filed.
20. The appellant ought to have filed an application under section 5 read with section 14 of the Limitation Act in view of the delay in filing appeal; however, no such application has been filed. The impugned order is dated 02.05.2023. Even if the period of pendency of RCA DJ No. 34/2023 from 15.07.2023 to 31.07.2024 and the time for obtaining the certified copy of the impugned order from 23.05.2023 to 30.05.2023 are excluded, the present appeal having been filed on 24.08.2024, is still barred by the law of limitation. Neither any application for condonation of delay has been filed nor any cogent, valid and viable ground for condonation of delay is made out. The appeal is therefore liable to be dismissed as being barred by the law of limitation.
MCA No. 16/2026 Page No. 10 of 11 Khem Das Vaishnav v. Chanchal Devi Jain (Through LRs) Relief
21. Considering the facts and circumstances of the case the present appeal is dismissed on the ground of being barred by the law of limitation. Parties are left to bear their own costs.
22. Trial Court Record be sent back along with a copy of this judgment. Appeal File be consigned to Record Room, after necessary compliance.
Digitally signed by SAURABH SAURABH KULSHRESHTHA
KULSHRESHTHA Date: 2026.05.05
17:10:58 +0530
(Pronounced in the open court
today i.e. 05.05.2026).
(Dr. Saurabh Kulshreshtha)
District Judge-04 (South)
Saket Courts, New Delhi
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Khem Das Vaishnav v. Chanchal Devi Jain (Through LRs)