S. G. SHAH, J.

Heard learned Senior Counsel Mr. Shalin N. Mehta assisted by Ms. Vidhi J. Bhatt, learned Advocate for the applicant.

2. Rule was issued on 4-2-2013 with permission for direct service upon the respondents. The affidavits of service is placed on record by the applicant. However, on verification of such affidavits, which are sworn on 13-2-2013 and 18-2-2013, it becomes clear that notice upon the respondent No.2 is received by the concerned Government department as rubber-stamp of concerned department is endorsed on the copy of the notice, confirming that they have received the notice and the same fact has been disclosed on oath by one Ramesh Govindbhai Chavda in his affidavit dated 13-2-2013.

3. However, so far as notice upon respondent No.1 i.e. Kotda Dcyodar Gram Panchayat is concerned, proprietor of applicants firm, namely, Jagdish Jayantibhai Thakker has filed affidavit dated 18-2-2013 to the effect that respondent No. 1 refused to accept the notice.

4. Though, service on notices and appearances is being checked by the Registry. In the present case, it is necessary to consider the action taken by the applicant, because the learned Senior Counsel Mr. Shalin Mehta is pressing to consider such affidavit as proper proof of service. Therefore, it would be appropriate to recollect the statement in such affidavit, which reads as under :

"AFFIDA VIT OF SERVICE

I, Jagdishbhai S/o. Jayantibhai Thakker residing at___ ________undersigned do hereby state on solemn affirmation as under :

1. That as per the order of the Hon'ble Court, I have served notice/ injunction/stay to the respondent No. I/refusal to accept notice and have obtained the signature on the original. I am producing here with the original copy duly signed by the parties.

2. What is stated above is true to my own knowledge.

Solemnly affirmed at Ahmedabad on this 18 day of February, 2013.

Sd/-

(DEPONENT)

Identified by me Sd/-

Advocate"

5. Therefore, learned Senior Counsel Mr. Shalin Mehta submits that such affidavit is as per practice and proforma of affidavit of Service to be filed before the High Court, and the same is to be treated as proper proof of service. However, it becomes clear that there is no application of mind either at the time of swearing such affidavit or at the time of filing it because in such affidavit, applicant has stated that - "I am producing herewith original copy duly signed by the parties". Though, there is written endorsement in the same affidavit that respondent No.1 refused to accept the notice. Such hand-written endorsement is shown in italic text in the above quoted text of said affidavit. Irrespective of other issues on hand, it is surprising to note that such affidavit does not disclose the details of the deponent like his age, occupation, address etc. for which Registry has to be careful. It is not certain that, who is deponent. Therefore, when the partner of the petitioner firm is the same, it is to be presumed that he has filed such affidavit.

6. The learned Senior Counsel was called upon to confirm that what steps are required to be taken in case of refusal of notice by litigant when direct service is permitted, considering the provisions of Order 5, Rule 17 of the Civil Procedure Code ('C.P.C.', for short) read with relevant provisions of the Gujarat High Court Rules, 1993. It has been submitted by the learned Senior Counsel that practically, there is no specific provision like Order 5, Rule 17 of the C.P.C. in the Gujarat High Court Rules, 1993. Therefore, so far as service of notice upon the litigant is concerned, we have to rely upon the provisions of C.P.C.

7. Heard learned Advocate for the petitioner at length, who is pressing to consider the unserved respondents, who have refused to accept the notice, to be considered as deemed served because of their refusal to accept notice during process of direct service by the petitioner.

8. It is contended by the learned Advocate for the petitioner that Order 5, Rule 17 of the Code o