Order V Rule 17 CPC

Source: Rajasthan High Court 

Why in News? 

Recently, Justice Anoop Kumar Dhand set aside the ex parte decree, holding that service of summons under Order V Rule 17 Code of Civil Procedure, 1908 (CPC) without a verifying witness's signature is invalid. 

The Rajasthan High Court held this in the matter of Ram Kishan v Ram Dai & Ors. (2025). 

What was the Background of Ram Kishan v Ram Dai & Ors., (2025) Case? 

• Ram Dai filed a suit against Ram Kishan for declaration and permanent injunction under the Rajasthan Tenancy Act, 1955. Ram Kishan initially filed his written statement in response. 
• The case faced multiple dismissals - first when Ram Dai failed to appear (July 1999), then when she couldn't pay costs or produce evidence (March 2000). However, Ram Dai successfully appealed, and the Revenue Appellate Authority remanded the case back to trial court in November 2001. 
• When fresh notices were issued to Ram Kishan, the process server could not find him at home and affixed the summons on his house. Critically, the process server failed to obtain witness signatures to verify the house identity, violating Order V Rule 17 CPC requirements. 
• Based on this defective service, the Assistant Collector conducted ex-parte proceedings and ruled in favour of Ram Dai in May 2002.  
• Ram Kishan's subsequent appeals to the Revenue Appellate Authority (rejected July 2004) and Board of Revenue (rejected September 2020) were unsuccessful. 
• Ram Kishan finally approached the Rajasthan High Court through a writ petition, challenging all adverse orders based on the fundamental defect in service of summons and violation of natural justice principles. 

What were the Court’s Observations? 

• The Court clarified that defendants have two options when facing an ex-parte decree: they can either file an application under Order 9 Rule 13 CPC to set aside the decree, or file a regular appeal under Section 96(2) CPC challenging the decree on merits. 
• The Court emphasised that the right to appeal under Section 96(2) CPC is a substantive statutory right, not just a procedural formality. Defendants cannot be denied this right merely because they did not first attempt to set aside the ex-parte decree through Order 9 Rule 13. 
• The Court found that the service of summons was legally incomplete because the process server failed to obtain the signature of any witness who could identify Ram Kishan's house.  
  • This violated the mandatory requirements of Order V Rule 17 CPC, which requires witness verification when summons are affixed at a residence. 
• Since the service was defective, the Court held that the ex-parte proceedings should never have been initiated. The trial court incorrectly treated the service as complete based on an unverified report. 
• The Court rejected the argument that Ram Kishan's appeal was not maintainable, finding that the appeal memorandum did challenge the ex-parte judgment on its merits, making it a proper appeal under Section 96(2) CPC. 
• The Court determined that Ram Kishan was deprived of his fundamental right to be heard, which violated the basic principles of natural justice. No adverse order should be passed against a person without giving them a proper opportunity to present their case. 
• The Court noted that the appellate court made a factual error by stating that Ram Kishan had not filed a written statement after remand. The record clearly showed that a written statement was already on file, indicating that the appellate court failed to properly verify the facts before deciding. 
• Based on these findings, the High Court concluded that all three lower court judgments were fundamentally flawed due to procedural violations and factual errors. The Court ordered that the matter be remanded for fresh adjudication with proper adherence to due process and natural justice principles. 

What is Order V Rule 17 in CPC,1908 ? 

• Order V Rule 17 of the Code of Civil Procedure provides the legal framework for serving summons when normal service cannot be accomplished, specifically covering situations where the defendant refuses to accept the summons or cannot be located at his residence despite the serving officer making all due and reasonable efforts to find him. 
• The rule establishes strict preconditions that must be satisfied before alternative service can be adopted, requiring that there must be no agent empowered to accept service on the defendant's behalf, no other authorised person available for service, and no reasonable likelihood of finding the defendant at his residence within a reasonable timeframe. 
• When these preconditions are met, the serving officer is legally authorised to affix a copy of the summons on the outer door or any other conspicuous and easily visible part of the house where the defendant ordinarily resides, conducts his business operations, or personally works for monetary gain. 
• The rule mandates that after affixing the summons copy, the serving officer must immediately return the original summons to the issuing court along with a comprehensive report that can either be endorsed directly on the original summons or attached as a separate document containing all required details. 
• The report must include three mandatory elements: a clear statement confirming that the copy has been affixed as prescribed by law, a detailed explanation of the specific circumstances that necessitated this alternative method of service, and most crucially, the complete name and address of any person who helped identify the defendant's house. 
• Additionally, the report must contain the name and address of any person who was present as a witness when the summons copy was actually affixed to the house, serving as independent verification that the service was conducted at the correct address belonging to the intended defendant. 
• This witness identification and verification requirement serves as a fundamental safeguard designed to prevent misuse of the substituted service provision and ensures that the defendant's constitutional right to proper notice of legal proceedings is adequately protected even when personal service cannot be effected. 
• Failure to comply with any of these mandatory requirements, particularly the witness identification and verification aspects, renders the entire service legally incomplete and ineffective, thereby invalidating any subsequent ex-parte proceedings or judgments that may be based on such defective service of summons.