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M/S. Neerja Realtors Pvt. Ltd. v. Janglu (Dead) Thr. LR.

Civil Appeal · 2018 INSC 67Decided 29 Jan 2018
Civil Appeal No. 71 of 2018
Chief Justice Dipak Misra · Justice A.M. Khanwilkar · Dr. Justice D.Y. Chandrachud

Background

The appellant had entered into an agreement in 2006 to purchase agricultural land from the original defendant and later filed a suit for specific performance when the sale did not go through. Summons to the defendant could not be served personally, so the trial court ordered service by publication in a newspaper and, when the defendant still did not appear, decreed the suit ex-parte in the appellant's favour. The defendant's legal heir appealed, and the High Court set aside the ex-parte decree, finding that the procedure for substituted service had not been properly followed. The appellant then appealed to the Supreme Court.

Decision Breakdown

The Supreme Court examined whether the trial court had properly satisfied itself, as required under Order V Rule 17 and the law on substituted service, before ordering service by publication. It held that the record did not show due application of mind to that requirement, and that there was a clear breach of the prescribed procedure before resorting to service by publication. Relying on the three-judge bench decision in Bhanu Kumar Jain v. Archana Kumar, the Court reaffirmed that a defendant against whom an ex-parte decree is passed may pursue either a first appeal or an application under Order IX Rule 13, and that the original defendant had rightly used the first-appeal route and shown adequate grounds to have the ex-parte decree set aside. Finding no error in the High Court's reasoning, the Supreme Court dismissed the appeal and upheld the setting aside of the ex-parte decree, with no order as to costs.

Lesson Learnt

Courts cannot simply resort to "service by publication" as a shortcut when summons are returned unserved: they must first follow the proper steps to locate and serve a defendant personally, and a decree obtained by skipping those steps is vulnerable to being set aside on appeal.

Official source (sci.gov.in)View Judgment (PDF)

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