Summary
The Supreme Court set aside an ex parte commercial decree because the published summons specified only fifteen days for entering appearance and no definite day, date, year and time for attending court. The prescribed summons requirements applied to substituted service as well. The suit was restored for decision on merits, with an opportunity for the defendant to file its written statement.
Issues
- Whether published summons lacking a definite appearance date and time constituted due service sufficient to sustain an ex parte decree.
Provisions considered
- Appendix B, Process Nos. I and IA, Code of Civil Procedure, 1908The prescribed summons formats required a definite day, date, year and time for appearance; Calcutta’s Process IA applied in the absence of a separate substituted-service format. (¶¶ 18, 19, 20, 21, 22, 25, 30, 33)
Held
- Mention of a definite day, date, year and time for appearance is a substantive statutory requirement benefiting the defendant. The requirement of fixing time under Order V Rule 20(3) must be read harmoniously with Section 27 and the prescribed format; substituted service does not dispense with it. (¶¶ 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27)
- The published summons required appearance within fifteen days of publication and referred to a hearing date without fixing it. This material defect meant the summons were not duly served for purposes of Order IX Rule 13, warranting setting aside the ex parte decree. (¶¶ 28, 29, 30, 31, 32, 33, 34, 35)
- Although this particular defect had not been raised below, the Court permitted the pure question of law going to the root of jurisdiction to be raised for substantial justice. Other grounds were unnecessary to decide. (¶ 36)
- The suit was restored, with an opportunity to file the written statement and disposal on merits within one year as the outer limit. The deposit and withdrawal of Rs.47.50 lakh remained subject to the suit’s final result. (¶¶ 39, 40, 41)
Result
Appeal allowed; both High Court orders and the ex parte decree set aside. Suit restored; appearance fixed for 5 March 2018 and merits disposal directed within one year. Deposit and withdrawal subject to final result.