Mr. Prasanta Kumar Deka, J.

Heard Ms. S. Senapati, learned counsel appearing on behalf of the petitioner. As per the office note dated 17.06.2017, services on the respondents are completed and this matter is taken up for disposal.

2. That the petitioner is the proforma defendant No. 2 in Title Suit No. 1/2014 pending in the learned court of Munsiff No. 1, Cachar at Silchar. The suit filed by the plaintiff/respondent was directed by the learned trial court to take steps on the defendant including the present proforma defendant No. 2/petitioner,fixing 26.03.2014 for appearance and for filing written statement of the defendants/petitioner. On 26.3.2014, the learned counsel appearing for the defendant No. 1 sought for an adjournment for filing written statement which was allowed. However, summons of the present petitioner was returned with a report from the process server purportedly shown to be served by substituted manner, and as such 11.04.2014 was fixed for written statement by defendant No. 1 and for examination of the process server. On 11.04.2014, the process server was absent and as such the matter was fixed on 21.05.2014 for filing of written statement by defendant No. 1 and for examination of the process server. On the next date i.e. 21.05.2014 the process server was absent. The present petitioner who resides at Mizoram filed his written statement on 06.05.2014. However, no order was passed with regard to acceptance of the written statement filed by the present petitioner as the defendant No. 2 in the said suit, rather 07.07.2014 was fixed for examination of process server. Further, on 21.05.2014 the suit was ordered to proceed ex-parte against the defendant No. 1. On 07.07.2014, learned trial court by the order passed on the said date held that the defendant No. 2 filed written statement on 06.05.2014 which was beyond the period of 90 days without any explanation of the delay and as such the written statement filed by the present petitioner/defendant No. 2 was not accepted. It was also further recorded that the present petitioner was absent without any step and the suit to proceed ex-parte against the present petitioner. The next date was fixed for plaintiff's evidence.

3. The annexure-7 in this revision petition is the report of the process server who stated that as identified by the plaintiff he visited the house of the defendant No. 2(the petitioner) but did not find him. On being tendered the summons, the mother and the brothers of the present petitioner refused to accept the same and accordingly the summons was affixed on the front door of their house in presence of the witnesses. In order to verify such service on the present petitioner, the learned trial court was satisfied to examine the process server before accepting the service of summons on the present petitioner. The present petitioner on an off date i.e. 06.05.2014 filed his written statement though the suit was fixed on 21.05.2014 for examination of the process server in order to accept the service of summons on the said petitioner.

4. The order dated 07.07.2014 impugned in the present revision petition is palpably wrong inasmuch as service on the present petitioner as per the record was not completed in order to count the period of 90 days. Moreover, under Order 5, Rule 17 of the Code of Civil Procedure, 1908 (hereinafter called the CPC) when defendant refuses to accept service, or cannot be found, the procedure stipulated under Order 5, Rule 19 of the CPC is mandatory. Under such circumstances, the learned court below was satisfied to examine the process server in order to verify the veracity of the statement and report submitted before the court, prior to the acceptance of the service report. The finding of the court below that filing of the written statement by the present petitioner was beyond the period of the stipulated one of 90 days as per order VIII Rule 1 of the CPC is itself a wrong order. Order 8, Rule 1 CPC stipulates 90 days from the