FAO No.10/2024 Page No. 1 of 17 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 30.07.2025 Pronounced on: 14.08.2025 FAO No.10/2024 ASHIQ HUSSAIN & ORS. …APPELLANT(S) Through: - Mr. G. A. Lone, Advocate, with Mr. Mujeeb Andrabi, Advocate. Vs. MUZAFFAR ALI HAKEEM & ANR. …RESPONDENT(S) Through: - Mr. M. R. Thakur, Advocate. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) The appellants, through the medium of present appeal, have challenged order dated 25.03.2024, passed by the learned Principal District Judge, Anantnag, whereby their application filed by under Order IX Rule 13 of the Code of Civil Procedure for setting aside of exparte judgment and decree dated 22.06.2022 passed by the same Court, has been dismissed. 2) It appears that respondent No.1 (hereinafter referred to as “the plaintiff”) had filed a suit for mandatory injunction seeking eviction of the predecessor-in-interest of the appellants and proforma respondent No.2, namely, Mohammad Yousuf Shah (hereinafter referred to as “the defendant) from two shops situated at General Bus Stand, Anantnag. After summons were issued to the defendant, FAO No.10/2024 Page No. 2 of 17 the same were stated to have been served upon him on 30.07.2021. On 20.08.2021, the learned trial court recorded that the summons have been duly served upon the defendant and the case was adjourned to 18.10.2021 for awaiting his appearance. On 18.10.2021, when the defendant did not appear, the learned trial court proceeded exparte against him and the plaintiff was directed to lead evidence in exparte. 3) It appears that during pendency of the suit, the original defendant died on 23.10.2021 and on 05.11.2021, an application came to be filed by the plaintiff for bringing on record legal heirs of the deceased defendant. On 01.12.2021, the proposed legal representatives of the deceased defendant (the appellants herein) were proceeded exparte and the plaintiff was directed to produce evidence by way of affidavits. However, on 28.01.2022, the learned trial court realized that the service of proposed legal heirs of the deceased defendant had not been effected, as such, order dated 01.12.2021 was recalled and the Registry was directed to issue fresh summons to the legal heirs of the deceased defendant (appellants herein). 4) The minutes of the proceedings reveal that on 02.03.2022, the learned trial recorded that summons issued to legal heirs of the deceased defendant could not be FAO No.10/2024 Page No. 3 of 17 served as they had gone out of station, as such, a direction for service of summons upon the legal heirs of the deceased defendant by a substituted mode i.e. by affixation was issued and the matter was posted to 25.04.2022. On the said date, the learned trial court recorded that nobody has appeared on behalf of the legal representatives of the deceased defendant, as such, they were proceeded exparte. Thereafter on 02.06.2022, an order came to be recorded by the learned trial court that the legal representatives, whose names were mentioned in the application, are brought on record as defendants and thereafter the arguments came to be heard by the learned trial court. 5) On 22.06.2022, the learned trial court proceeded to pass an exparte judgment and decree in favour of the plaintiff and the defendants/legal representatives of the deceased defendant were directed to hand over the vacant possession of the suit shops to the plaintiff. They were further directed to pay the outstanding licence fee along with interest to the plaintiff. 6) The aforesaid exparte judgment and decree came to be challenged by the appellants and proforma respondent No.2 by filing an application under Order IX Rule 13 of CPC before the learned trial court. In the said application, it was pleaded by the appellants that their predecessor-in- FAO No.10/2024 Page No. 4 of 17 interest, the original defendant, had fallen seriously ill a few years back and they had to proceed outside the Valley in connection with his treatment. It was further pleaded that after their return to the Valley, when appellant No.1 and proforma respondent No.2 started operating their business from the suit shops, they came to know that the plaintiff has filed a false and frivolous suit against the defendant while they were busy in connection with treatment of their father at Sonipat Haryana and Delhi. It has been pleaded that the appellants were never served with the summons. It has been also submitted that the original defendant, the predecessor-in-interest of the appellants and proforma defendant No.2, died on 23.10.2021. The appellants placed on record the medical record to support their contentions. 7) It was contended by the appellants before the learned trial court that the summons were not properly served upon them and that they were out of their residence at the time when the process server had visited their house. It has been further contended that even at the time when the summons were purportedly served upon the original defendant, he was out of State. It has been further contended that there was no occasion for the trial court to direct service of summons upon the appellants by FAO No.10/2024 Page No. 5 of 17 substituted mode as there was nothing on record to show that the appellants were avoiding service of summons. It has been further pleaded that the serving officer has not provided copy of the plaint and other documents to the defendant and affixation of summons upon the appellants has not been made in presence of any witness nor their house has been identified by any person. 8) The aforesaid application was contested by the plaintiff by filing reply thereto. In his reply, the plaintiff contended that the substitution of the appellants as legal heirs in the suit does not confer upon them right to the property which was subject matter of the suit. It has been submitted that the appellants have no heritable right and interest in the suit property and they are just trespassers. It was further submitted that the original defendant was duly served with the summons and at the relevant time, he was not outside the State for his treatment. It has been submitted that the original defendant has affixed his signatures on the summons. It was further submitted that the appellants were in know of the suit right from its institution. 9) Regarding service of the appellants, the plaintiff claimed that proforma respondent No.2 was duly served with summons and thereafter the court again issued FAO No.10/2024 Page No. 6 of 17 summons for service of appellant No.1 and proforma respondent No.2 but they were not available at home and, therefore, the process server affixed the summons in their house. It has been submitted that it was not possible for the process server to deliver copy of the plaint to the appellants because they were not present in their home and their service was effected through affixation. 10) The appellants did not lead oral evidence before the learned trial court. however, plaintiff/respondent No.1 herein examined himself as a witness in support of his case. 11) The learned trial court after hearing the parties came to the conclusion that the original defendant as well as his legal heirs were duly served with the summons of the suit and that the appellants were served in the main suit on 14.03.2022 much after the death of the original defendant, therefore, their contention that they were busy outside the State in connection with treatment of their father even after 14.03.2022, is palpably false. On this ground the learned trial court declined to set aside the exparte judgment and decree dated 22.06.2022. 12) The appellants have challenged the impugned order dated 25.03.2024 passed by the learned trial court on the grounds that the learned District Judge, while passing the FAO No.10/2024 Page No. 7 of 17 impugned order, has failed to appreciate that the mandatory provisions of Order V Rule 2 of the CPC were not adhered to in the present case, inasmuch as copy of plaint was not served upon the original defendant along with the copy of the summons. It has been further contended that once the learned District Judge had adjourned the case after recording that the defendant had been served, it was incumbent upon him to issue a fresh notice to the defendant so as to convey the next date of hearing to him, which, in the instant case, has not been done. It has also been contended that the plaintiff had only impleaded appellant No.1 and proforma respondent No.2 as legal heirs of the deceased defendant, though appellants No.2 and 3 also happen to be his legal heirs. It has been further contended that the service of legal heirs of the deceased defendant has been effected by substituted mode by affixation of summons without there being any witness to the said exercise. Therefore, it cannot be stated that the legal heirs of the deceased defendant were duly served. Thus, the provisions contained in Order V Rule 17 of the CPC have not been adhered to by the learned trial court, which aspect of the matter has been totally ignored by the learned District Judge while passing the impugned order. FAO No.10/2024 Page No. 8 of 17 13) I have heard learned counsel for the parties, perused the grounds of appeal, the impugned order passed by the learned trial court as also the record of the trial court. 14) The first groundthat has been urged by learned counsel for the appellants for challenging the impugnedorder is that the learned trial court has failed to appreciate the legal position that the provisions contained in Order V Rule 2 of the CPC are mandatory in nature and, therefore, service of summons without delivery of copy of the plaint constitutes an illegality and not an irregularity. It has been contended that the observation of the learned trial court that non-furnishing of copy of plaint along with the summons is a mere irregularity which does not form a ground for setting aside of an exparte decree, is erroneous in law. 15) In the above context, a perusal of the trial court record would reveal that the summons issued on 16th July, 2021 by the learned trial court for 20th August, 2021 in the name of original defendant, Mohammad Yousuf Shah, bears the report of the process server that the summons have been personally delivered to the defendant. The summons purportedly bear the signatures of the defendant. However, it is nowhere stated in the form of summons that the same was accompanied by a copy of the plaint. In fact, FAO No.10/2024 Page No. 9 of 17 the endorsement on the summons shows that it has been forwarded to Nazir Tamilat for execution and it does not indicate that the summons was accompanied by a copy of the plaint. 16) Order V Rule 2 of CPC provides that every summons shall be accompanied by a copy of the plaint. The question whether the provisions contained in Rule 2 of Order V are mandatory in nature, came up for consideration before this Court in the case of Abdullah Bhat vs. Shaban Sheikh, 1974 KLJ 287. While interpreting the provisions contained in rule 2 of Order V of the CPC, this Court held as under: “7. The word used in this Rule is "shall" and that would mean that it is mandatory and this provision of law enjoins that the summons should be served in manner as required in this Rule i.e. to say the summons shall be accompanied by a copy of the plaint. It is permissible that a concise statement instead of a copy of the plaint may accompany the summons provided it has been so permitted by the Court. Here there was no such permission and there is nothing to show that even any concise statement was sent and served with the summons on the petitioner-defendant. The idea is very clear as to why there is an emphasis on the defendant being served with a copy of the plaint so that it may enable him to know exactly what is the nature of the suit and on wit basis etc. It has been filed, I have already indicated above that the contents of the aforesaid summons give no idea except that a suit for the recovery of Rs. 2000/-has been filed. The learned counsel for the petitioner in this connection has relied on a decision in the case of M. G. Dua Vs. Balli Mal Newal.l Kishore reported as AIR 1959 Punjab 467 wherein it was held a summons not accompanied by a copy of the plaint cannot be regarded as duly served. He has also FAO No.10/2024 Page No. 10 of 17 relied on a decision in the case of K. A. Desai and Co. Vs. Vijaysingh ji Bhimsinghji reported as AIR 1954 Saurashtta 84. The significance attached to Rule 2 of Order 5 of the Code of Civil Procedure and as to what would be its effect if it is not served according to that rule would be clear if reference is made to some other provisions of law to which I will presently refer.” 17) A similar view has been taken by Calcutta High Court in the case of Suresh Chandra Sarkar vs. Gosaidas Pal, AIR 1976 Calcutta 87. In the said case, it was held that in case the provisions contained in Rule 2 of Order V of the CPC have not been complied with and no summons with the copy of the complaint was sent to the defendant, it cannot be stated that there was substantial compliance with the law laid down for the service of summons upon the defendant. 18) A Division Bench of Punjab & Haryana High Court in the case of Babu Ram Bhatnagar vs. Satish Kumar Rawal, 1991 SCC OnLine P&H 453, after examination of the case law on the issue as to whether or not the provisions contained in Order V Rule 2 of the CPC are mandatory in nature, observed as under: 13. On an analytical examination of the entire case law cited at the Bar and on pursuing Order 5 Rule 2, Civil Procedure Code it can safely be held that attachment of the copy of the plaint or a concise statement thereof along with the summons is mandatory. No summons can be regarded to have been duly served unless it is accompanied by a copy of the plaint. „Due service‟ means service of summons along with the plaint. It cannot be held that the word due‟ has been superfluously used by FAO No.10/2024 Page No. 11 of 17 the Legislature. Compliance of the provisions of Order 5 Rule 2 Civil Procedure Code is a must and it cannot be held to be directory. 14. We are in respectful agreement with the view taken by this Court and other Courts including the Madhya Predesh High Court which has given new dimension as regards the defendant's making up his mind against the claim of the plaintiff only after he receives a copy of the plaint. It is only on the service of the plaint along with the summons that the defendant would be in a position to make up his mind whether to contest the suit of the plaintiff or not. Assuming that the plaintiff files a suit for a nominal amount say Rs. 500/- or so the defendant on receipt of the summons along with the copy of the plaint may decide not to contest the suit and in that situation he may like to suffer an ex-parte decree. If he does not receive the plaint along with the summons, surely he cannot decide whether to contest the suit or not. Even in rent matters a tenant may not choose to contest if he receives a copy of the application for eviction. Assuming a landlord files an application for eviction on the ground that the tenant has ceased to occupy the premises for a period of more than four months and such a tenant has, in fact, ceased to occupy the tenanted premises as has been pleaded, and he is not interested in contesting, why must be go to the Court in order to contest. However, if the copy of the plaint or the rent application is not attached with the summons, and such service is held to be „due service‟ he will have to go to a court of law in order to know the nature of the claim. After he goes there and finds that the claim of the plaintiff was justified, he would be put to unnecessary botheration which can be avoided if the copy of the plaint or the rent application is served along with the summons. In view thereof, in order to avoid harassment of the defendant, it becomes essential for the Court to send a copy of the plaint along with summons. 15. For the reasons mentioned above we are of the firm view that the attachment of a copy of the plaint is mandatory and no „due service‟ can be said to be effected in the eye of law until and unless copy of the plaint is attached along with the summons. The question then arises in what circumstances second proviso to Rule 13 of Order 9, Civil Procedure Code comes into play and in what circumstances it can be availed of by the plaintiff. In our considered view the proviso would be attracted in a very exceptional case. It can FAO No.10/2024 Page No. 12 of 17 apply to such type of cases where the plaintiff can prove affirmatively by producing categorical evidence that the defendant knew the exact claim made in the plaint and if upon production of such evidence the Court feels satisfied like anything that the exact nature of the claim was known to the defendant the Court may record a finding that everything was within the knowledge of the defendant. As to what would be the quality of evidence, it is for the Court to take into consideration. However, it may be emphasised that the quality of the evidence which the Court may rely upon has to be superb. Only in such circumstances the defendant may not be heard to say that there was irregularity in the service of summons and the Court may in such circumstances only refuse to set aside the ex- parte decree on the ground of irregularity in the service of summons. 19) The Supreme Court has, in the case of Nahar Enterprises vs. M/S Hyderabad Allwyn Ltd. and another, 2007(II) S.L.J 470, held that non-receipt of copy of the plaint and the documents along with the summons forms a ground to set aside an exparte decree. 20) From the foregoing analysis of law on the subject, it is clear that the provisions contained in Order V Rule 2 of the CPC are mandatory in nature and non-delivery of copy of the plaint along with the summons to a defendant is not a mere irregularity which can be ignored while considering a plea for setting aside of an exparte decree. There has been a consistent view that service of summons in the absence of delivery of copy of the plaint does not constitute due service and, as such, the same forms a ground for setting aside of an exparte decree. FAO No.10/2024 Page No. 13 of 17 21) Reverting back to the facts of the present case, the trial court record clearly tends to show that the copy of the plaint was never served upon the original defendant. The appellants while making application for setting aside of the exparte decree have clearly pleaded that copy of the plaint was not received either by the original defendant or by them. The observation of the trial court that non-delivery of copy of the plaint constitutes a mere irregularity is, therefore, contrary to the settled legal position. 22) In the instant case, the plaintiff has not proved affirmatively by producing categorical evidence that the defendant or even the appellants knew the exact claim that was made by him against the defendant. Therefore, non- supply of the plaint to the defendant and thereafter to the appellants, in the facts and circumstances of the case, cannot be taken as a mere irregularity. 23) Order IX Rule 13 of CPC offers two grounds for a defendant to succeed in an application for setting aside of the exparte decree. He has to satisfy the court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. The expression “due service” means service of summons along with copy of the plaint. Thus, mere service of summons is not enough to presume that FAO No.10/2024 Page No. 14 of 17 the defendant had the knowledge of the nature of claim filed against him. It is only when the summons is accompanied by a copy of the plaint that the defendant comes to know about the nature of claim filed against him which enables him to file his written statement to the said claim. 24) In the instant case, the appellants havesucceeded in showing that the summons upon their predecessor-in- interest as also upon them was not duly served, inasmuch as it was not accompanied by a copy of the plaint. Thus, neither the original defendant nor the appellants have been duly served of the summons. Therefore, they have succeeded in making out a case for setting aside of the exparte decree. The learned District Judge, Anantnag, has, however, brushed aside this aspect of the matter by terming the same as an irregularity, which is contrary to the settled legal position. 25) Apart from the above, if weanalyze the aspect with regard to service of summons upon the legal heirs of the deceased defendant (the appellants herein), it is revealed that even service of summons upon them has not been effected properly. The record reveals that the learned trial court had, in its order dated 02.03.2022, directed the service of summons upon the legal heirs of deceased FAO No.10/2024 Page No. 15 of 17 defendant through substituted mode i.e. by affixation of summons. Pursuant to said order, the process server, vide his report dated 14.03.2022, recorded that after proceeding on spot, he pasted a copy of the summons on the main door of the house of the appellants. On the basis of this report, the learned trial court declared that the appellants/legal representatives have been duly served and, accordingly, they were proceeded exparte. 26) The requirement of law as per the provisions contained in Order V Rule 17 of the CPC is that when defendant cannot be found at his residence at the time when service is sought to be effected upon him and there is no likelihood of his being found at his residence within a reasonable time, the serving officer has to affix a copy of the summons on the outer door or on some conspicuous part of the house in which the defendant ordinarily resides, whereafter the serving officer has to return the original summons to the court from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so and the name and address of the person by whom the house was identified and in whose presence the copy was affixed. 27) The report of the process server in the instant case does not indicate as to under what circumstances he FAO No.10/2024 Page No. 16 of 17 affixed the summons on the main door of the residence of the appellants. It is nowhere recorded in the report that the appellants were not found in their house. The report also does not indicate as to who identified the house of the appellants nor does it reveal the name and address of the person in whose presence the affixation was undertaken. Thus, it cannot be stated that service of summons upon the appellants by affixation has been properly made. The manner in which the process server has recorded his report does not indicate that the provisions contained in Order V Rule 17 of the CPC have been adhered to. Therefore, it cannot be stated that the summons have been duly served upon the appellants. This forms an additional ground for setting aside of the exparte judgment and decree. However, the learned trial court unfortunately has not adverted to this aspect of the matter. 28) For what has been discussed hereinbefore, it is clear that neither the service of summons of the original defendant nor the service of his legal heirs/appellants herein has been effected in accordance with the procedure prescribed under the mandatory provisions of the Code of Civil Procedure, which, it seems, have been flouted in the present case. Therefore, the appellants have made out a FAO No.10/2024 Page No. 17 of 17 case for setting aside of the exparte judgment and decree passed by the learned trial court. 29) Accordingly, the appeal is allowed and the impugned order dated 25.03.2025 passed by the learned District Judge, Anantnag, is set aside. The application for setting aside of the exparte judgment and decree dated 22.06.2022 is allowed and the said exparte judgment and decree is set aside subject to payment of costs of Rs.15000(rupees fifteen thousand),which shall be payable to the plaintiff by the appellants. Upon payment of costs by the appellants to the plaintiff before the trial court within a period of one month from the date a copy of this judgment is received by the said court, the learned trial court shall afford an opportunity to the appellants to file their written statement and thereafter proceed further in the matter in accordance with law. 30) A copy of this judgment be sent to the learned trial court for information. (Sanjay Dhar) Judge Srinagar, 14.08.2025 “Bhat Altaf” Whether the judgment is reportable: YES Naresh Kumar 2025.08.14 18:04 I attest to the accuracy and integrity of this document