Ex Parte decree – Whether ‘refusal’ to accept summons is ‘valid’ service on Defendant?

When summons are issued to a Defendant in a civil suit, and such Defendant chooses not to appear and contest the suit, the Court may, after considering the available evidence, pass a judgment and decree in favour of the Plaintiff. However, law still provides an opportunity to the Defendant to contest the suit provided he prefers an Application under Order 9 Rule 13 of the Code of Civil Procedure, 1908, praying the Court to set aside the ex parte decree passed against him. The Defendant has to convince 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. There are instances, wherein, summons sent is retuned with endorsement ‘Refused’ or ‘No such person available’ or ‘Left’. The issue that arises is whether summons returned endorsement 'Refused' or 'No such person available' or 'Left' is a valid service or not?

In one such case, summons sent to Defendant was returned with an endorsement ‘Refused’. District Court set the Defendant ex parte and proceeded to pass ex parte decree and judgment against the Defendant. Thereafter, the Defendant filed an Application to set aside the ex parte decree on the ground that summons were not served to him, however, the District Court dismissed the Application holding that service of summons on Defendant was a valid one. 

However, on appeal titled as Tongbram Chandrakala Devi Vs The Luxmi Development Institute, the Hon'ble Manipur High Court reversed the decision of the District Court while stating “it was a case where trial court proceeded exparte only on the basis of endorsement “refusal” alleged to have been made by defendant on the summons, that such endorsement of “refusal” also did not appear to be wholly conclusive and was rebuttable one at the instance of petitioner….”. The Hon'ble High Court further held “It is for this reason, the endorsement of “refusal” does not appear to be conclusive in nature and cannot be relied on for holding the service to be good.” The Hon'ble High Court allowed the Defendant to consent the suit on merits.