IMPORTANT POINT
The summons were not served on defendant appellant according to Order 5 Rules 16, 17 and 18 CPC. The trial Court failed to discharge its obligation under Order 9 Rule 6 CPC and High Court overlooked second proviso to Order 9 Rule 13 CPC, resulting in failure of justice by refusing to set aside the ex-parte decree in present case.

Headnote:Civil Procedure Code, 1908-Order 9 rules 13 and 6-Order 5 Rules 16, 17 & 18-Ex-parte decree dated 9.10.1983 for recovery arrears of rent and eviction from a shop in Amritsar-Summons for 23.2.83 tendered by process server on 22.2.83 but refused -No witness available on spot-Trial Court took service by refusal-Passed ex-parte decree-Tenant applied to set it aside under Order 9 Rule 13 ef=act:10444>CPC-Rejected by trial Court-Rejection upheld in appeal by High Court on ground that tenant had knowledge of pendency of suit-Appeal against to Supreme Court-Whether trial Court and High Court were right? (No)-Appeal allowed-Case remanded for fresh trial according to law.
       Held : We find several infirmities and lapses on the part of the process server. Firstly, on the alleged refusal by the defendant either he did not affix a copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall should have been witnessed by persons who identified the defendant and his shop and witnessed such procedure. The endorsement shows that there were no witnesses available on the spot. The correctness of such endorsement is difficult to believe even prima facie. The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. One can understand refusal by unwilling persons requested by the process server to witness the proceedings and be a party to the procedure of the service of summons but to say that there were no witnesses available on the spot is a statement which can be accepted only with a pinch of salt. Incidently, we may state that though the date of appearance was 23rd February, 1993 the summons is said to have been tendered on 22nd February, 1993, i.e., just a day before the date of hearing. The appellant has himself appeared in the witness box and deposed on oath that no summons was tendered to him by any process server of the court. It is a case of oath against oath. In view of the facts which we have noticed here-in-above clearly the oath of the appellant was more weighty than the oath of the process server. In the ordinary course of events, the court of facts should have discarded the statement of the process server and believed the statement of the appellant. (Paras 8 & 9)
       Held further : The High Court has overlooked the second proviso to Rule 13 of Order 9 C.P.C., added by the 1976 Amendment which provides that no court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff s claim. It is the knowledge of the date of hearing and not the knowledge of pendency of suit which is relevant for the purpose of the proviso abovesaid. Then the present one is not a case of mere irregularity in service of summons; on the facts it is a case of non-service of summons. (Para 11)
       Held in addition : If only the trial Court would have been conscious of its obligation cast on it by Order 9 Rule 6 of the C.P.C., the case would not have proceeded ex-parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation. Be that as it may, we are satisfied that the summons was not served on the defendant-appellant. He did not have an opportunity of appearing in the trial Court and contesting the suit on merits. The trial Court and the High Court have committed a serious error of law resulting in failure of justice by refusing to set aside the ex-parte decree. (Paras 12 & 13)
       Held finally : The appeal is allowed. The orders of the trial Court and the High Court are set aside. The application under Order 9, Rule 13 C.P.C. filed by the defendant-appellant is allowed. The ex-parte decree dated 9.10.1993 is set aside. The proceedings of the trial Court shall stand relegated back to 23.2.1993. The parties through their respective learned counsel are directed to appear before the trial Court on 5.8.2002, on which date, the trial Court shall appoint a date of hearing and proceed ahead with the hearing of the suit in accordance with law. No costs. Let the record of the trial Court be transmitted back at the earliest accompanied by a copy of this Order. (Para 14)

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

Proper Service of Summons: The process server's report and the endorsement on the summons indicate that the summons was allegedly tendered to the defendant-tenant, who refused to accept it. However, there are inconsistencies and lapses in the process server's account, especially regarding witness presence and the manner of service (!) (!) (!) (!) (!) (!) .
Contradiction in Service Evidence: The process server's deposition states that the summons was refused and then pasted on the shop wall, but the endorsement contradicts this, showing that the summons and plaint were returned to the court instead of being affixed on the premises (!) (!) (!) (!) .
Legal Procedure Requirements: The rules governing service specify that when a defendant refuses to accept service or cannot be found, the process server must affix the summons on a conspicuous part of the defendant’s residence or place of business in the presence of witnesses. The evidence suggests these procedures were not properly followed (!) (!) .
Oath Against Oath and Credibility: The tenant's testimony in court denying receipt of the summons holds more credibility than the process server’s account, especially given the contradictions and lack of witnesses to support the process server’s claims (!) (!) (!) .
Knowledge of the Hearing Date: The court emphasizes that the critical factor is whether the defendant had notice of the hearing date, not merely knowledge of the suit’s pendency. The absence of proper service means the defendant was not given a fair opportunity to appear and contest the case (!) (!) .
Obligation of the Court: The court highlights that

ORDER

This is a landlord-tenant litigation. The tenant is aggrieved by an ex-parte decree dated 9.10.1993 for recovery of arrears of rent and eviction from the suit premises bearing plot No. 9, Chowk Shakti Nagar, Amritsar where the tenant carries on his business of selling shoes. An application under Order 9, Rule 13 of the C.P.C. seeking setting aside of the ex-parte decree was filed which was opposed, enquired into and rejected by the Trial Court. The Civil Revision preferred by the tenant met with the same fate. The tenant has filed this appeal by Special Leave.

2. A perusal of the record of proceedings shows that the process server was entrusted with summons for service on the defendant-tenant. The date of hearing appointed was 23.2.1993. According to the process server, Narinderjeet Singh, he went to the shop of the tenant-appellant on 22.2.1993 and tendered to him the summons accompanied by a copy of the plaint. The tenant refused to accept the summons. Then, he returned the summons alongwith an endorsement of refusal on the back of summons to the Court on 23.2.1993. On 23.2.1993, the Court recorded default in appearance of the defendant-tenant and proceeded ex-parte resulting into the ex-parte decree dated 9.10.1993.

3. The singular issue which arises for determination in the case is whether the defendant-tenant can be said to have been properly served in the manner contemplated by the Code of Civil Procedure?

4. Before we proceed to notice the relevant provisions of law, it will be relevant to state what was endorsed by the process server on the back of the summons and what was deposed to by him in the court when he was examined in the court as a witness for the landlord-respondent.

5. The endorsement made by the process servor reads as under :

"REPORT OF PROCESS SERVER

Sir,

I visited Sushil Kumar Sabharwal C/o Sabharwal Shoes, House 9. He met me on the spot present. But he refused to accept the summons. Copy of the plaint alongwith summons is returned to the Court.

Report submitted accordingly.

Sd/-

Narinderjeet Singh

Dated : 22.2.93

Translation from Punjabi to English.

Attested to be true.

(Rajesh Bhandari)

Note : No witness available on the spot.

Refusal - 23.2.1993"

6. The facts deposed to by Narinderjeet Singh, Process Server in the court show his having tendered the summons alongwith the copy of the plaint to the defendant and thereupon, the defendant s refusal to accept the same. He affirmed the endorsement made by him on the back of the summons. However, he proceeded to state "if the person refuses to accept the same, a copy of the summons and copy of the application be pasted on the wall of the said shop". His deposition runs counter to his own endorsement made on the back of the summons, according to which, on refusal by the defendant to accept the summons "copy of the plaint alongwith summons" was returned to the court.

7. Rules 17 and 18 of Order 5, C.P.C. which lay down the procedure of service when the defendant refuses to accept service and the endorsement to be made by the serving officer, read thus :

"17. Procedure when defendant refuses to accept service, or cannot be found.-Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant (who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time) and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily reside or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or an

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