The non-mention of the name and address of the person who identified the house and the person to whom the notice was tendered and refused amounts to non-service of summons on the defendant, providing a valid ground to set aside the ex-parte decree.

1. At the request of the parties, this Misc. Appeal is heard finally today.

2. This appeal is directed against an order dated 18. L2006 passed by the 1st Additional District Judge, Rajnandgaon in Miscellaneous Judicial case No. 17 of 2004 whereby the application under Order 9 Rule 13 C.P.C. filed by the defendant/appellant-Ashok Kumar Sahu for setting aside the ex-parte judgment and decree dated 18.6.2004 against the appellant/defendant- Ashok Kumar Sahu for Rs. 60,000/- was dismissed.

3. Brief facts are that on 15.1.2004 the suit was fixed for appearance of the defendant. The summons issued against the defendant/appellant was returned by the process Server-Kewal Das with the report that on 21.12.2003 when he went to serve the notice and made enquiries about the defendant in Budhwari locality, the defendant was not present. He was informed that the defendant had gone out of village. Wife of the defendant was present at the house, who refused to take a copy of the notice, due to which, he made service by affixture of the notice on the main door of the house. Pursuant to such report given by the process Server Kewal Das, the First Additional District Judge proceeded ex- parte against the defendant and ultimately on 18.6.2004 i.e. after more than 5 months passed an ex parte judgment and decree for Rs. 60,000/- against the defendant along with interest at the rate of 6% payable by the defendant from the date of suit till recovery.

4. The defendant preferred an application under Order No.9 Rule 13 C.P.C. Which was registered as Misc. Judicial case No. 1712004. He pleaded that the plaintiff had in collusion with the process Sever Kewal Das, got a false report of service by affixture sent on the summons of the defendant. It was pleaded that neither the defendant's wife refused to take notice nor did the Process Sever affix the notice on the main door of the house of the defendant. It was also pleaded that the defendant came to know about the ex-parte judgment and decree for the first time on 27.9.2004 and preferred and application under Order 9 Rule 13 C.P.C. within limitation on 8.10.2004. The application was supported by affidavits of the defendant and his wife-Kuleshwari, The plaintiff-respondent denied the pleadings of the defendant in toto and prayed that the application was liable to be dismissed. The 1st Additional District Judge, Rajnandgaon Conducted an enquiry and recorded the statement of Ashok Kumar D.W. 1 and Kuleshwari D.W. 2 as also the statement of process Server Kewal Das N.A. No.2.

5. Shri Parag Kotecha, learned counsel for the defendant/appellant argued that the testimony of Process Server Kewal Das clearly goes to show that he was acting in collusion with the plaintiff/respondent. There was material variance in the report of the Process Sever which was attested by one witness Surendra and his testimony, which revealed in paragraph 3 that one Deepak was present at the time of service. Paragraph 2 of testimony of the process server also showed that he made no efforts to enquire about the whereabouts of the defendant or to ascertain the location of the house of the defendant. Lastly, it was submitted that paragraph 5 of the testimony of the process Server left no room for any doubt that he was acting in collusion with plaintiff-decree-holder and had given a false report of service by affixture. On these premises, it was urged that the impugned order dated 18.1.2006 was liable to be set aside and the ex-parte judgment and decree dated 18.6.2004 in Civil Suit No.44-B/2003 was also liable to be set aside. Reliance was placed on a decision rendered by this Court in Kunjlal Vs. Khorbehreen & others.

6. On the other hand, Shri Amiyakant Tiwari while placing reliance on Tea Auction Ltd Vs. Grade Hill Tea Industry & Anr. opposed this Misc. Appeal only on the ground that the ex-parte judgment and decree may be set aside but subject to heavy costs.

7. Having considered the rival submissions, I have perused the record of