Non-compliance with the mandatory provisions for service of summons vitiates the service and provides grounds for setting aside an ex parte decree.

As per Hon'ble Shri D.R. Deshmukh, J. :-

1. This revision is directed against the order dated 21-9-99 passed by Civil Judge Class-I Dongargarh, District Rajnandgaon in Misc. Civil Case No. 1193 whereby the application of the respondents/defendants under Order 9 Rule 13 of C.P.C. read with Section 5 of Limitation Act to set aside the ex-parte judgment and decree dated 22-4-1992 passed in favour of the petitioner/ plaintiff in Civil Suit No. 36-A/91 was allowed.

2. Brief facts are that in Civil Suit No.36-A/91 filed by the petitioner/ plaintiff, summons were issued to the non-applicants/defendants. The summons of defendants Khorbehareen and Suman were returned by the Process Server Satanand Singh with the endorsement that on 27-1-1991 when he went to village Manditarai, Tahsil Dongargarh, District Rajnandgaon for service of summons on Khorbehareen and Sumanlal Verma, both these defendants refused to receive the summons and a copy of the plaint whereupon he affixed a copy of the summons on the house of the defendants and made endorsement to that effect on the summons. These defendants were proceeded ex parte by the trial Court. Thereafter, a compromise was filed between the parties i.e. plaintiff-Kunjlal and defendant No.1 Lakhanlal in Civil Suit No. 36-A/91. Compromise decree was passed on 22-4-92 whereby the applicants/ defendants were restrained by a permanent injunction from interfering with the possession of the plaintiff over the suit lands mentioned in schedule-A.

3. Defendants Khorbehareen Bai and Sumanlal Verma made an application under Order 9 Rule 13 C.P.C. for setting aside the ex parte decree passed against them on 19-01-93 on the ground that plaintiff-Kunjlal and defendant Lakhanlal had acted in collusion with each other and obtained the said compromise decree without the knowledge of these defendants. Defendant Khorbehreen was an illiterate and defendant Suman lived in Dongargarh and not in Manditarai, therefore, it was pleaded that the defendants Khorbehreen and Sumanlal Verma had no knowledge of the civil suit instituted against them and that summons of suit was not duly served against them.

4. In reply, the plaintiff-Kunjlal and defendant No.1 Lakhanlal alleged that summons were duly served upon the applicants/defendants Khorbehreen and Sumanlal Verma since they had refused to accept the summons whereupon the process server had affected the service of summons by affixture, as contemplated by Order 9 Rule 13 C.P.C.

5. Applicants/defendants Khorbehreen and Sumanlal Verma gave statement on oath in the lower Court in support of their contentions and examined Nankuram as A.W3 while the non-applicants examined Defendant No.1 Lakhanlal and the Process Server Satanand Singh in support of their contentions. Kunjlal did not enter the witness box.

6. The learned lower Court after considering the rival contentions and the evidence led by the parties came to the conclusion that the Process Server had not explained as to how he came to know the location of the house of the applicants/defendants and had also not mentioned in his report, the names of witness in whose presence he had affixed the summons at the house of the applicants/defendants. It thus held that the summons were not duly served on defendants Khorbehareen and Sumanlal Verma. It also held that Khorbehareen had no knowledge of the ex parte judgment and decree passed by the lower Court in Civil Suit No. 36-A/91. Consequently, the lower Court condoned the delay and allowed the application under Order IX Rule 13 C.P.C. setting aside the ex parte judgment and decree dated 22-4-92.

7. The learned counsel for the applicant/plaintiff has mainly contended that from the testimony of Process Server Satan and Singh A.W.2 and a perusal of the report given by him on the summons of Khorbehareen and Sumanlal Verma, it is crystal clear that the summons was served by affixture on these defendants in accordance with law. It was therefore contended that the order passed by