The Kerala High Court has reaffirmed that a suit cannot be dismissed for default solely because service of notice remains incomplete, especially when the plaintiff has not been given a reasonable opportunity to effect proper service. This judgment clarifies that procedural compliance must serve justice, not obstruct it.
Background & Facts
The Dispute
The plaintiffs-appellants, M/s. Raja Biri Private Ltd. and Mugal Trade Links, filed Original Suit No. 4 of 2022 before the Additional District Court (Adhoc) III, Thiruvananthapuram, alleging trademark infringement and passing off by eight defendants operating under various business names such as 'F & L Traders', 'Green Kerala Marketing', and 'Ziyaz Traders'. The suit sought injunction, damages, and delivery up of infringing goods.
Key Facts
- The suit was filed on 05.01.2022.
- Summons were issued to all eight defendants on 12.01.2022.
- Multiple notices were returned unclaimed or marked 'not known' or 'addressee left' by postal authorities.
- The plaintiffs filed a restoration petition on 15.07.2025 after the suit was dismissed for default on 27.06.2025.
- The restoration petition was dismissed on 27.08.2025 on the ground that service was incomplete and no steps were taken to effect substituted service.
- No evidence was recorded, no arguments were heard on merits, and no opportunity was granted to the plaintiffs to apply for substituted service under Order V Rule 20 of the CPC.
Procedural History
- 05.01.2022: Original Suit filed before Additional District Court (Adhoc) III, Thiruvananthapuram.
- 12.01.2022: Summons issued to all eight defendants.
- 01.03.2022 to 15.06.2025: Multiple attempts at service; notices returned undelivered.
- 27.06.2025: Suit dismissed for default due to non-appearance of defendants.
- 15.07.2025: Plaintiffs filed Restoration Petition No. 13 of 2025.
- 27.08.2025: Restoration petition dismissed by trial court.
- 10.09.2025: First Appeal from Order No. 152 of 2025 filed before Kerala High Court.
- 08.04.2026: Judgment delivered by Division Bench.
Relief Sought
The appellants sought restoration of the suit to enable adjudication on merits, direction to issue fresh summons to defendants, and opportunity to prove infringement. They also requested costs of litigation.
The Legal Issue
The central question was whether a suit can be dismissed for default under Order IX Rule 9 of the CPC when service of notice has not been completed and the plaintiff has not been given an opportunity to pursue substituted or substituted service under Order V Rule 20.
Arguments Presented
For the Appellants
The appellants argued that dismissal for default without granting an opportunity to effect proper service violates the principles of natural justice and the mandate of Section 151 CPC. They relied on S.P. Chengalvaraya Naidu v. Jagannath to assert that courts must act as facilitators of justice, not technical dismissers. They contended that the trial court’s compliance with a direction to dispose of the matter by 31.08.2025 did not justify a summary dismissal without addressing the service defect.
For the Respondents
The respondents did not file any written submissions. No appearance was made on their behalf before the High Court. The court noted that the respondents had not contested the appeal and had not raised any prejudice from restoration.
The Court's Analysis
The Division Bench observed that the trial court’s dismissal of the restoration petition was based on a misreading of its own procedural obligations. The court noted that the direction from the High Court in O.P.(C) No. 1925 of 2025 to dispose of the matter by 31.08.2025 was not a directive for mechanical disposal, but for adjudication on merits.
"Compliance of the direction by this Court for disposal of the proceedings did not mean a statistical disposal. The application was to be disposed of on its merits."
The court emphasized that when notices are returned as 'not known' or 'addressee left', the plaintiff must be given a reasonable opportunity to apply for substituted service under Order V Rule 20 or to seek leave for service by publication. Dismissal at this stage, without such opportunity, amounts to denial of fair hearing.
The court further held that there was no inordinate delay in filing the restoration petition - it was filed within 30 days of dismissal - and the plaintiffs had demonstrated a prima facie case of infringement. The dismissal of the suit on procedural grounds, without affording the plaintiff a chance to cure the defect, was unjust.
The Verdict
The appeal was allowed. The order dismissing Restoration Petition No. 13 of 2025 was set aside. The suit was restored to the file of the trial court. The parties were directed to appear before the trial court on 10.06.2026. If any defendant fails to appear, fresh summons shall be issued. The trial court shall proceed to dispose of the suit on merits in accordance with law.
What This Means For Similar Cases
Service Defects Cannot Be Grounds for Summary Dismissal
- Practitioners must immediately apply for substituted service under Order V Rule 20 CPC when notices are returned undelivered.
- Courts cannot dismiss suits for default without first directing plaintiffs to cure service defects.
- A dismissal for default without opportunity to serve is a violation of Article 21 and Section 151 CPC.
Restoration Petitions Are Not Merely Procedural Formalities
- Restoration petitions must be heard on their merits, especially when the defect is curable.
- Delay in filing restoration is not fatal if the plaintiff shows sufficient cause and a prima facie case.
- Courts must distinguish between genuine non-service and deliberate non-appearance.
Judicial Directions Must Be Interpreted Substantively
- Directions from higher courts to dispose of cases within timelines are not mandates for mechanical closure.
- Compliance with timelines must not override the duty to ensure fair procedure.
- Judges must prioritize substantive justice over statistical disposal targets.
