Failure to comply with the mandatory provisions of O. 5, Rr. 17 and 19, and O. 9, R. 6(1) and 1(a), C.P.C. affects the jurisdiction of the Court to proceed with the suit ex parte.

This civil revision under Section 115, C.P.C. was dismissed on 29-8-88 for default of the petitioner. It was restored on 28-9-88 at the instance of the petitioner. After that the case was called for hearing for the second time on 22-12-88; but on that date also, the petitioners counsel was absent. As it was not possible for the Court to go on dismissing for default and again restoring when the counsel makes a request; I perused the petition of revision and, by my judgment dated 9-2-89, dismissed it ex parte on merits.

2. Mr. S. K. Sen, the late senior counsel for the petitioner assiduously pressed for vacating the ex parte judgment of dismissal and for disposing of the revision after hearing him. On consideration that the party should not suffer because of the fault of the counsel, I issued notice to the opposite party and then heard the counsel for both sides.

3. The facts of the case were as follows. The opposite party was the plaintiff in Title Suit No. 136/78 of the Court of Sadar Munsif at Guwahati. The suit was for eviction of the petitioners and some other persons, who were the defendants, from the suit land. The process-server submitted report to the trial Court that the defendants refused to accept the summons and therefore, he had served the summons by hanging it on their dwelling house in presence of two witnesses. The trial Court accepted this report. But the defen-dants made no appearance before the Court. Relying on the process-servers report, the learned Munsiff recorded the evidence of the plaintiff in absence of the defendants and decreed the suit ex parte for eviction of all the defendants. When the plaintiff started an execution case for eviction, three defendants who are the petitioners herein filed an application under O. 9, R. 13, C.P.C. for setting aside the ex parte decree stating that no summons were served on them in the suit. The other defendants had been evicted. The petitioners application was registered as Misc. Case No. 114(J) of 1984. In this Misc. Case, the plaintiff examined the process-server to prove that the summons were offered by him to the defendants who refused to receive and therefore, the summons to defendants were served by hanging it on their dwelling houses in presence of two witnesses whom he had named in the report. However, relying on the uncorroborated evidence of the process-server, the learned Munsiff by his order dated 15-3-86 refused to set aside the ex parte decree. On appeal by the petitioner (Misc. Appeal No. 7/86), the learned Assist-ant District Judge No. 1, Guwahati confirmed the rejection by his order dated 18-11-87 (the impugned order). The petitioners are still in possession of a part of the suit land which is under their occupation. Their claim is that they had possessed their part for 22 years without being questioned by anybody.

4. The point for determination in this revision is whether the trial Court had jurisdiction to accept the process-servers report without making any enquiry before proceeding with the suit ex parte. Mr. R. P. Sarma, learned Counsel for the petitioner has contended that the provisions of O. 5, R. 19, C.P.C. are mandatory and, therefore, where a process-server gave a report that he had served the summons by hanging it on the homes of the defendants, the trial Judge must make enquiry by examining the process-server and other witnesses and record an order that summons were duly served on the defendants and only thereafter he can proceed to dispose of the suit ex parte. To support this contention, he placed the Full Bench decision of the Madras High Court in Parasurama v. Appadurai, AIR 1970 Mad 271. In that case, a Full Bench dealing with O. 5, R. 19, C.P.C. held :

"Where the Legislature has used the words shall and may in the same provision, that itself is an indication, that the word shall has been used in a mandatory sense."

The relevant provision for determination of this revision are O. 5, Rr. 17 and 19 and O. 9, R. 6(1) and 1(a),