The main legal point established in the judgment is that the service of summons should be on a 'major' member of the family, and the knowledge of the proceedings is irrelevant if the summons is not served in the manner provided by the Code.

A.M. Khanwilkar, J.

By this appeal under Order XLIII of the Code of Civil Procedure, the appellants have challenged the judgment and order dated February 17, 2003 passed on Civil Misc. Application No. 149/2003 which, in turn, rejected the prayer for setting aside the ex parte judgment and decree passed by the Addl. District Judge, at Mapusa in Regular Civil Appeal No. 46/2001 dated May 27, 2002.

2. Briefly stated, the respondent filed a suit being special Civil Suit No. 46/94 before the Court of Civil, Judge, Sr. Division, at Mapusa for eviction, mandatory and permanent injunction and recovery of mesne profits, against the appellants. The said suit, however, came to be dismissed by the judgment and decree dated June 13, 2000. Against that decision, the respondent carried the matter in appeal being Regular Civil Appeal No. 46/2001 before the Addl. District Judge, Mapusa. It is the appellants case that the appellants were not served with summons of hearing of the said appeal at all. Nevertheless, the appeal came to be decided ex parte against the appellants by judgment and decree dated May 27, 2002. By this decision, the Appellate Court was pleased to decree the suit in favour of the respondent. It is the case of the appellants that as soon as the appellants became aware about the said ex parte judgment and decree passed by the Addl. District Judge, Mapusa, they immediately filed an application for setting aside the same, sometime in August, 2002 being Civil Misc. Application No. 149/2002 under Order XLI, Rule 21 of CPC. That civil application was, however, dismissed on February 17, 2003 being devoid of merits. Against the said decision, the appellants have preferred the present appeal from order.

3. On the other hand, the case of the respondent is that the summons regarding hearing of the appeal before the Addl. District Judge. Mapusa was sent on the known address of the appellants and the same was served on appellant No. (e) Ms. Maria Goretti Palha and that position is fortified from the materials which were already on record before the Court below. In response, the appellants submit that assuming the summons came to the served on appellant No. (e), the service of that summons on the appellants was incompetent because at the relevant time, the said appellant No. (e) was, admittedly, a minor i.e., below age of 18 years. The appellants contend that as per the provisions of Order V, Rule 15 of the CPC it is obligatory that service of such summons is served on any "adult" member of the family; and since that requirement is not fulfilled, the service of summons on appellant No. (e) will be of no avail and is not a proper service on the appellant at all. It was also their case that they had no knowledge about the service effected on appellant No. (e) as such.

4. The core question that needs to be addressed in the present appeal is, whether service of summons regarding hearing of the appeal on appellant No. (e) can be said to be legitimate, so as to reject the claim of the appellants for setting aside the ex parte judgment and decree passed against them by the Appellate Court? Before we proceed to examine the submissions, it will be apposite to advert to Rule 15 of Order V. which reads thus :

"Where service may be on an adult member of defendant's family.-Where in any suit the defendant is absent from his residence at the time when the service of summons 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 he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family. whether male or female, who is residing with him." (emphasis supplied)

According to the respondent, the expression used in Rule 15 is "adult member" of he family. It is, therefore, submitted that 'adult' need not be necessarily a major i.e. 18 years and above, but it is sufficient to establish that the person such a