MRIDULA BHATKAR, J.

1. Rule. Rule made returnable forthwith. By consent of both the parties, the Writ Petition is heard finally at the stage of admission.

2. This Writ Petition is directed against the order dated 13th November, 2017 passed by the District Judge-7, Pune for setting aside the ex-parte order for want of proper service on the defendant in the suit. For the sake of convenience, in order to avoid confusion, the parties are referred to by their original status.

3. The petitioners are the original plaintiffs, who have filed the suit for specific performance against the respondent/defendant on the basis of the Agreement dated 4th April, 1996. In Special Civil Suit No. 1491 of 2009, the Court issued summons on the defendant. However, the defendant did not appear though summons were duly served. The trial Court decreed the suit ex-parte on 8th November, 2011 after considering the affidavit-in-chief of the plaintiff and the documents on record. Nearly two years after, the respondent filed an Application for setting aside the said ex-parte order along with the Application for condonation of delay. The delay was condoned by the trial Court and the Application was numbered as M.A. No. 684 of 2013 which was contested by the plaintiffs and the trial Court accepted the case of the plaintiff that the summons though was served on the defendant, he failed to appear and as it was good service, the Application was rejected by order dated 16th February, 2015. Appeal No. 340 of 2015 was preferred by the respondent/defendant and after hearing both the sides, the Appellate Court allowed the said Appeal with cost and quashed and set aside the order of Small Causes Court, Pune and directed the respondent to file the written statement. The plaintiffs have challenged the said order in Appeal.

4. The learned counsel for the petitioners has submitted that the order of the trial Court is well reasoned in which the trial Court has held that the defendant was duly served by the summons issued by the Court, however, he failed to appear before the Court and therefore, the Application to set aside the ex-parte decree was rejected. The learned counsel pointed out the affidavit of the case and submitted that the Court bailiff has served the summons twice on the address given by the defendant himself. He submitted that the learned District Judge gave wrong finding on fact and as well as on law. The learned Judge has stated that the bailiff has reported that the respondent/defendant was not residing on the given address which is factually wrong, as the bailiff remark on both the occasion was “he had left the premises.” He further pointed out that the learned District Judge gave wrong reasoning that the plaintiffs did not prove that the newspaper was affixed like summons under Order 5 Rule 20 of the Code of Civil Procedure on the conspicuous place of the last known address, it cannot be construed to be a valid service. The learned counsel submitted that this erroneous reasoning and the order of the learned District Judge should go and the order passed by the learned trial Judge is to be restored. He has submitted that so far as service of summons is concerned, there was satisfactory compliance of Order 5 Rule 20 of the Code of Civil Procedure. The learned counsel has further submitted that the order passing ex-parte decree not necessarily to be set aside, as a routine. When after considering the evidence of the plaintiffs and the documents on record, the judgment is delivered, then it is as good as a judgment on merits. In support of his submissions, the learned counsel relied on the following judgments of the Hon'ble Supreme Court:

(i) International Woollen Mills vs. Standard Wool (U.K.) Ltd. (2001) 5 SCC 265

(ii) Commissioner of Income-tax, Punjab vs. Daulat Ram Khanna, AIR 1967 SC 1552

(iii) Neerja Realtors Pvt. Ltd. vs. Janglu (dead) through LRs. (2018) 2 SCC 649

5. The learned counsel for the respondent, while supporting the order passed by the l