Skip to main content

On service of summons and burden of proof

In Sweety Gupta Vs. Neety Gupta, the Hon'ble Delhi High Court while elaborating on the various procedures arising from non-delivery of summons and the resultant ex-parte order  held that -

Civil Procedure Code, 1908 – Order 5 Rule 17 & 18 – Endorsement of the process server / postman – If no evidence is given with regard to service of summons, the fact that the postman or the process server reported refusal/non acceptance of the service would have to be accepted as correct.

Civil Procedure Code, 1908 –Order 9 Rule 6 – Procedure when only plaintiff appears – When summons are duly served but the defendant chooses not to appear, the Court may make an order that the suit be heard ex parte. In case it is not proved that the summons are duly served, the Court is under an obligation to direct a second summons to be issued and served on the defendant. In the event of the defendant not having sufficient time to appear, the Court can postpone the hearing of the suit to a future date whereafter fresh notice of such date is required to be given to the defendant.

Civil Procedure Code, 1908 – Order 9 Rule 13 – Setting aside decree ex parte against defendant – An ex parte decree cannot be set aside if the Court is convinced that defendant had the knowledge of the proceedings and he could have appeared and answered to the plaintiffs claim.

Civil Procedure Code, 1908 – Order 9 Rule 13 – Setting aside decree ex parte against defendant – An ex-parte decree shall not be set aside merely on the ground of irregularity in the service of summons if the Court was satisfied that the defendant was aware of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

Article referred: http://www.lawkam.org/caselaw/summons-sweety-gupta-neety-delhi/10959/

Comments

Post a Comment

Most viewed this month

Partition proceedings are vitiated even if single co-sharer is not made party or is not served in accordance with law

Cause Title :  Bhagwant Singh vs  Financial Commissioner (Appeals) Punjab, Chandigarh,  CWP-2132-2018 (O&M), High Court Of Punjab & Haryana At Chandigarh Date of Judgment/Order : 31.08.2022 Corum : Hon’ble Mr. Justice Sudhir Mittal Background A large parcel of land was owned by the Nagar Panchayat. Thereafter, some of the co-sharers sold their shares to third parties including the petitioners herein. On 22.11.1995, respondents No.3 to 5 filed an application for partition of the land. The petitioners were not impleaded as parties.  On completion of proceedings, sanad was issued on 28.08.1996. Vide two separate sale deeds dated 28.05.2008 respondents No.3 and 5 sold some portion in favour of respondent No.6 and 7. These respondents sought implementation of the sanad resulting in issuance of warrants of possession dated 05.06.2008. Allegedly, it was then that the petitioners realized that joint land had been partitioned and that proceedings h...
Post a Comment
Read more

Power of Attorney holder can also file cheque bounce cases: Supreme Court

The Supreme Court has held that a criminal complaint in a cheque bounce case can be filed and pursued by a person who holds a power of attorney (PoA) on behalf of the complainant. A three-judge bench headed by Chief Justice P Sathasivam gave the "authoritative" pronouncement on the issue, referred to it by a division bench in view of conflicting judgements of some high courts and the apex court. "We are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the Negotiable Instruments Act (which deals with cheque bounce cases)," the bench, also comprising justices Ranjana Prakash Desai and Ranjan Gogoi, said. The bench, in its judgement, said, "...we clarify the position and answer the questions in the following manner: "Filing of complaint petition under Section 138 of Negotiable Instruments Act through PoA holder is perfectly legal...
1 comment
Read more

Christian who reconverts as Hindu SC will get quota benefits

Amid the controversy over “ghar wapsi”, the Supreme Court on Thursday ruled that a person who “reconverts” from Christianity to Hinduism shall be entitled to reservation benefits if his forefathers belonged to a Scheduled Caste and the community accepts him after “reconversion”. Citing articles by B R Ambedkar and James Massey, and reports by Mandal Commission and Chinappa Commission, the court said: “There has been detailed study to indicate the Scheduled Caste persons belonging to Hindu religion, who had embraced Christianity with some kind of hope or aspiration, have remained socially, educationally and economically backward.” The bench of Justices Dipak Misra and V Gopala Gowda held that a person shall not be deprived of reservation benefits if he decides to “reconvert” to Hinduism and adopts the caste that his forefathers originally belonged to just because he was born to Christian parents or has a Christian spouse. Expanding the scope of a previous Constitution benc...
1 comment
Read more