The main legal point established in the judgment is the requirement for conclusive establishment of notice being personally served upon the defendant and the leniency in considering the application for setting aside ex-parte order.

( 1 ) THE respondent/plaintiff filed a suit for mandatory injunction to the defendant who is his tenant to remove unauthorised constructions made in the House No. A-75, Ramesh Nagar, New Delhi and for recovery of mesne profits from 15. 5. 1991 upto 31. 1. 2000 amounting to Rs. 27,000. 00

( 2 ) THE suit was instituted on 7. 9. 1995 and summons in the suit was issued on 8. 9. 1995. Steps were taken by the plaintiff to serve the defendant and the defendant did not appear, therefore, he was set ex-parte.

( 3 ) ON 19. 5. 1997 the petitioner filed an application to set aside the order dated 24. 12. 1996 setting him ex-parte. That was opposed by the respondent/plaintiff.

( 4 ) BY order dated 4. 4. 1998 the application filed by the petitioner/defendant was dismissed by the learned Civil Judge. That is challenged in the revision petition.

( 5 ) THE learned Civil Judge in the order has said that the petitioner refused service and therefore, the service was declared sufficient and consequent on his nonappearance, he was set ex-partand the plea by the defendant that there was no service is not correct and there was no sufficient cause shown for his nonappearance and accordingly the learned Civil Judge dismissed the application. That is challenged in the revision by the defendant.

( 6 ) THE learned Counsel for the petitioner Mr. Bisaria submitted that the learned Civil Judge has come to a wrong conclusion that service was effected on the defendant that he refused to receive notice and the facts stated by the petitioner in the application for setting aside ex-parte order are true. According to the learned Counsel the learned Civil Judge has committed a very serious error and has resulted in manifest injustice and therefore, the order is liable to be set aside. Mr. Bisaria, learned Counsel submitted that the petitioner has got three years time under Article 137 of the Limitation Act, 1963 to file the application under Order 9 Rule 7. The learned Counsel submitted that the principle is it must be conclusively established that the notice was personally served upon the defendant and that is not shown. The Court should be lenient in considering the application for setting aside ex-parte order. The learned Counsel submitted that 4. 9. 1996 the learned Civil Judge noted: "defendant not served. Issue fresh summon to the defendant on PF/rc for 6. 12. 1996. One copy of the summon be given dasti. "

( 7 ) ACCORDING to the learned Counsel for the respondent as per this order of the Court steps were taken. On 6. 12. 1996 the learned Civil Judge was on leave and matter was adjourned to 24. 12. 1996. On 24. 12. 1996 the learned Civil Judge passed the following order: "none for the defendant. Defendant has refused to accept the service of summon as per report of process server. Defendant had refused to accept the service of summons twice as per report of process server. Defendant is proceeded ex-parte. Case is now fixed for ex-parte evidence on 14. 3. 1997. "

( 8 ) THE argument by learned Counsel Mr. Bisaria is even though order was passed by the learned Civil Judge on 4. 9. 1996 when the learned Civil Judge was on leave on 6. 12. 1996 further proceedings taken by the plaintiff for service would not have any effect and therefore, order passed on 24. 12. 1996 setting the defendant ex-parte is not valid in law. The learned Counsel submitted when the Presiding Officer of the Court was on leave on 6. 12. 1996 the defendant ought not have the defendant set ex- parte. For this proposition learned Counsel relied upon the judgment of the Karnataka High Court reported in AIR 1985 Karnataka 175. The facts do not resemble the facts of this case. The facts of the case are these: The defendant in the suit for recovery of money appeared in Court after service and on 13. 12. 1977 he was supplied furnish, copies to the plaint. The suit was adjourned to 15. 11. 1997 for filing written statement. Again it was adjourned to 15. 12. 1997. Defendant to file written st