SRINAGAR: The High Court of Jammu & Kashmir and Ladakh has ruled that service of an ex parte injunction order under the Code of Civil Procedure (CPC) cannot be treated as a substitute for the mandatory service of summons, setting aside a trial court order that had closed a defendant’s right to file a written statement after the expiry of the statutory 120-day period.
Justice Sanjay Parihar passed the ruling while allowing a civil revision petition filed by 70-year-old Rama Rani against an order of the 3rd Additional Munsiff, Jammu, dated May 26, 2023.
The trial court had held that Rama Rani had failed to file her written statement within 120 days as required under Order VIII Rule 1 of the CPC and consequently forfeited her right to defend the civil suit filed by Chaman Lal.
Before the High Court, the petitioner argued that she had never been served with summons in accordance with Order V of the CPC and became aware of the suit only while obtaining records in another long-pending litigation between the parties. She submitted that after learning about the proceedings, she engaged counsel and sought time to file her written statement, but the trial court closed her right despite recording the circumstances explaining the delay.
The respondent, however, contended that the petitioner had been duly served with the interim injunction order and related documents on January 7, 2023, and that the 120-day period began from that date. It was argued that the trial court had correctly relied on the plaintiff’s affidavit regarding service.
Examining the record, Justice Parihar found that although the trial court had directed issuance of summons when the suit was instituted on December 27, 2022, there was no material to show that summons were ever issued or served upon the defendant in the manner prescribed under Order V CPC.
The Court noted that what had actually been served on the petitioner was only a copy of the ex parte injunction order passed under Order XXXIX Rules 1 and 2 CPC, along with the documents required under Order XXXIX Rule 3.
Drawing a clear distinction between the two forms of service, the Court held that the statutory period of 120 days prescribed under Order VIII Rule 1 begins only upon valid service of summons.
Justice Parihar observed that the object of serving an interim injunction order is merely to inform the opposite party of the ex parte relief granted and the material relied upon by the plaintiff, whereas summons under Order V are intended to require the defendant to appear before the court and file a written statement.
“The service of an ex parte order of temporary injunction cannot be equated with the service of summons contemplated under Order V of the Code of Civil Procedure,” the Court held.
The judgment further observed that Order V CPC lays down a detailed and mandatory procedure governing issuance and service of summons, including furnishing a copy of the plaint, obtaining acknowledgment of service and compliance with prescribed modes of service. These statutory requirements, the Court said, cannot be bypassed.
Reaffirming an earlier decision in Abdul Qayoom Sheikh v. Sajad Haider (2024), the Court held that unless the trial court is fully satisfied that summons have been duly served in accordance with Order V CPC, it cannot invoke the stringent consequence of closing a defendant’s right to file a written statement under Order VIII Rule 1.
Justice Parihar also observed that although, following the adaptation of the Central Code of Civil Procedure in Jammu and Kashmir in 2020, courts have no jurisdiction to accept written statements beyond 120 days from the date of service of summons, the statutory clock itself does not begin unless valid summons are served.
Holding that the trial court had erroneously treated service of the injunction order as effective service of summons and wrongly relied upon an earlier judgment decided on distinguishable facts, the High Court set aside the impugned order.
The Court directed that the written statement, if already filed, be taken on record, and if not, the petitioner be allowed to file it on the next date of hearing. The matter has been remanded to the trial court for further proceedings in accordance with law, with the parties directed to appear before the trial court on August 10, 2026.
