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Lal Babu Singh vs Girija Devi & Ors on 13 May, 2015 cites

A.C. Ananthaswamy & Others vs Boraiah (Dead) By Lrs on 20 August, 2004

Mere allegation that process server or postal peon did not tender the notice is not helpful for setting aside the ex-parte decree without substantiating the elements of fraud and malafide and for that reliance has been placed on the decision in the case of A.C. Ananthaswamy & Ors. Vs. Boraiah (D) by Lrs. reported in 2005 (1) PLJR page 20. Learned trial court had noticed the process server‟s act in recording refusal of service and found it valid service and then ordered for Gazette publication. Further irregularities in service of summons cannot be a ground for invoking the procedure of Order 9 Rule 13. The defendants were very much aware of the partition suit but evaded to contest the suit since the reliefs sought in the suit was not prejudicial to their interest. The plaintiff claimed relief of entitlement of 1/6th share in the property and, as such, the appellants have not contested it and intentionally allowed the suit to be decreed ex-parte. The suit is of 1979 and the decree is of 13.05.1982 and, as such, equity will not go in favour of setting aside the decree in the absence of sufficient cause which prejudiced the interest of defendants- appellants herein. In the case of deliberate non-appearance the equity of order 9 Rule 13 cannot be invoked.
Supreme Court of India Cites 4 - Cited by 71 - Full Document

Bhagwan Singh And Ors. vs Ram Balak Singh And Anr. on 16 December, 1986

Further reliance has been placed upon the judgment in the case of Bhagwan Singh & Ors. Vs. Ram balak Singh & Anr. reported in AIR 1988 Patna Page 166 wherein it has been held that issuance of summons only under Order V Rule 1 of the Code, Court not ordering issuance of summons for service by registered post nor recording reasons why it considered it unnecessary in the circumstances of the case, held service of summons was not valid. Learned counsel for the appellant has further submitted that in the present case the court below in gross violation of law has directed for publication of summons in Gazette on 31.01.1980. The steps for substituted service can only be taken after compliance of the Rules of Order 5 Rule 1 to 18. On perusal of that it can be resorted to only two conditions are satisfied: (a) that there is reason to believe that defendant is keeping out of the way for the purpose of avoiding the service or not and (b) for any other reason the summons could not be served in ordinary way.
Patna High Court Cites 1 - Cited by 12 - Full Document
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