The main legal point established is that the proviso to Order 9 Rule 13 applies only in the case of irregularity in the service of summons, and the defendant must have notice of the dates of hearing for it to be applicable.

( 1 ) PLAINTIFF filed a suit for injunction against the defendant on the allegations as contained in the plaint. The suit was registered on 7. 4. 1998 and summons were issued for 15. 4. 98. For 15. 4. 98, the defendant was not served and summons were, therefore, again sent to the defendant for 17. 4. 98 . On 17. 4. 98, the court held that the defendant had refused to accept the summons and he was, therefore, proceeded ex-parte. The ex-parte evidence was directed to be led on 12. 5. 98. On 12. 5. 98, the plaintiff appears to have taken an adjournment and the matter was, therefore, adjourned to 25. 8. 98 for leading ex-parte evidence. The matter was, however, taken up on 15. 5. 98 on an application of the plaintiff for early hearing. The application was allowed and the matter was, therefore, preponed to 22. 5. 98 for ex- parte evidence. On 22. 5. 98, ex-parte evidence by way of affidavits was filed and the matter was adjourned to 18. 9. 98. It appears that an application was again filed by the plaintiff for early hearing which was taken up on 25. 5. 98. The application was allowed and the matter was adjourned to 29. 5. 98 for arguments. On 29. 5. 98, the court passed an ex-parte decree against the defendant.

( 2 ) THE defendant filed an application on 5. 6. 98 for setting aside the ex-parte decree. By the impugned order the learned Trial Court has allowed the application and set aside the ex-parte decree passed against the defendant on the ground that the summons were not duly served upon the defendant. Being aggrieved by this order the present revision petition has been filed by the plaintiff.

( 3 ) IT is the contention of the plaintiff that firstly the defendant was duly served for 17. 4. 98 and secondly even assuming that he was not served, the plaintiff had informed the defendant on 4. 5. 98 that he has already been proceeded ex-parte in the suit filed against him and he was also informed of the next date of hearing. It is the contention of learned Counsel for the plaintiff that since the defendant was aware of the proceedings against him and he having not taken any steps to set aside the ex- parte order this Court should not set aside the decree on the ground that there was any irregularity in the service of summons as the defendant was not aware of the date of hearing and he had sufficient time to appear and answer the plaintiffs claims.

( 4 ) THERE is a basic fallacy in the arguments of learned Counsel of the plaintiff inasmuch even assuming the plaintiff had on 4. 5. 98 informed the defendant about his having been proceeded ex-parte the only date of hearing he could inform the defendant was 25. 8. 98 since the matter was preponed for hearing to 22. 5. 98 only on 15. 5. 98. Defendant, therefore, admittedly did not know that the case was fixed either on 15. 5. 98 or on 22. 5. 98. Defendant was also not aware of the matter having been taken up on 25. 5. 98 or on 29. 5. 98, when ex-parte decree was passed. In terms of proviso to Order 9 Rule 13 it is only in the case of irregularity in the service of summons that the Court has to be satisfied about the defendant having notice of the date of hearing. As already mentioned above not only that the defendant did not have notice of any of the dates of hearing fixed in May, 1998, but it is also the case of the defendant that service was not effected upon him. A perusal of the summons sent to the defendant shows that the defendant did not meet the Process Server and there was, therefore, no question of his having refused to accept summons on 16. 4. 98 when the Process Server is alleged to have visited his house. That being the position, in my opinion, the learned Trial Court on 17. 4. 98 has wrongly held that the defendant had refused to accept the summons. The case was preponed twice only on the applications of the plaintiff and admittedly the defendant did not have notice. of the dates for which the case was adjourned after pre-ponement. In case the defendant was awar