Proper service of summons and the defendant's knowledge of the date of hearing are crucial for setting aside an ex-parte decree.

1. Legality and propriety of the order dated 18.08.2011 passed by IInd Civil Judge Class-I, Raipur, in MJC Case No. 27/2007, setting aside ex-parte judgment and decree passed in favour of applicant/plaintiff, is under assail in the instant revision.

2. The facts in brief, shorn of details, and necessary for disposal of this civil revision lie in a narrow compass. The plaintiff instituted a suit for permanent injunction against the respondent/defendant on 25.09.04 along with an application for grant of temporary injunction. The trial court directed service of summons upon the defendant through Special Process Server and fixed the case for defendant's reply on 30.09.04. Defendant's address shown in plaint is as under:

3. As per service report, near Tatyapara Square, Raipur, the summons was served upon the wife of defendant on 29.09.04. On 30.09.04, the case was adjourned for 04.10.04 as Presiding Officer was on leave. On 04.10.04, the trial court proceeded ex-parte against the defendant and ultimately on 24.11.04 an ex-parte judgment and decree was passed.

4. After coming to know about ex-parte decree, the defendant filed an application for setting aside ex-parte decree on 30.08.05 inter alia on ground the summons was not served upon the defendant.

5. The trial court, vide order impugned, set aside the ex-parte judgment and decree. Hence this Revision.

6. Shri AK Prasad, learned counsel appearing for the applicant would submit summons served upon the wife of defendant on 29.09.04 by the Special Process Server is evident from the report of Process Server, therefore, the plea raised by the respondent regarding "non service of summons" is on the face incorrect. It was .further contended the application for setting aside ex-parte judgment and decree was filed beyond the statutory period of limitation without filing any application for condonation of delay so also the ex-parte judgment and decree should not have been set aside by the trial court. By referring second proviso to Order 9 Rule 13 of CPC, it was further argued by Shri Prasad that no court shall set aside the decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons and thus the court below has committed jurisdictional illegality in setting aside ex-parte judgment and decree passed in favour of applicant.

7. On the other hand, Shri Janak Ram Verma, learned counsel appearing for the respondent supported the order and submitted the ex-parte decree has been set aside on the ground of non service of summons upon the defendant and order impugned does not call for any interference.

8. I have heard the counsel appearing for the parties, perused the order impugned and paper book of the case.

9. Indisputably, the notice was alleged to be served on the wife of the respondent on 29.09.2004 and the date fixed for appearance was 30.09.04; though there was no time much less sufficient to reach the court for appearance on that date. On 30.09.04 Presiding Officer was on leave and the case was posted for proper orders on 04.10.04, meaning thereby, the date of 04.10.04 was not the date of hearing. While adjourning the suit for 04.10.04, the said date was not communicated to the respondent as envisaged in Order 9 Rule 6(c) of CPC. Thus, on the face, summon was not dully served upon the defendant. The limitation began to run only when respondent had knowledge of the ex-parte decree. From the date of knowledge, the application for setting aside ex-parte decree has been filed.

10. True, Second proviso to Order 9 Rule 13 of CPC added by the amendment provides that no court shall set aside the 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 date of hearing and not the knowledge of pendency of suit which is relevant for the purpose of