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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/

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