IMPORTANT POINT
The main legal point established in the judgment is the significance of proper service of summons as per the requirements of Order V Rule 17 of the Code of Civil Procedure.

JUDGMENT :

This is an application under Section 115 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the order dated 07.02.2020 passed by the learned Civil Judge No.2, Kamrup (M) Guwahati in Misc. Appeal No.09/2014 whereby the order dated 19.03.2014 passed in Misc.(J) Case No.384/2013 by the learned Munsiff No.3, Kamrup(M) Guwahati was set aside.

2. The brief facts which led to the filing of the instant proceeding is that the petitioners herein had filed a suit being Title Suit No.263/2010 seeking eviction of the defendant from the tenanted premises on the ground that the defendant failed to pay the rent for the tenanted premises from August, 2009. In the said suit, upon summons being issued, the process server went to the address mentioned in the summons, but did not find the defendant. Thereupon the process server met the son of the defendant, but he refused to accept the summons and accordingly the process server affixed the summons at the door of the premises of the defendant in presence of a witness.

3. Pursuant thereto, the process server submitted a report on 23.12.2011 along with an affidavit on 02.01.2012. On the basis of the said process server’s report, the Court of the learned Munsiff No.3 Kamrup(M) Guwahati proceeded ex-parte against the defendant and passed the judgment and decree on 03.08.2012 in Title Suit No.263/2010. The defendant only coming to learn about the said judgment and decree on account of the Execution Proceedings initiated approached the learned Trial Court by filing an application under Order IX Rule 13 of the Code for setting aside the ex-parte judgment and decree on the ground that the summons were not duly served. The said application was registered and numbered as Petition No.2319/2013. Along with the said application, an application was filed under Section 5 of the Limitation Act, 1963 for condoning the delay of 345 days in preferring the application under Order IX Rule 13 of the Code. In respect to both the applications, the plaintiffs submitted written objections. The learned Trial Court vide order dated 19.03.2014 dismissed both the applications stating that the statements made by the defendant, who was the petitioner to the said applications were not tenable in law and in facts and were not supported by documents or evidence.

4. Being aggrieved, an appeal was preferred by the defendant which was registered and numbered as Misc. Appeal No.09/2014. The learned Court of Civil Judge No.2 Kamrup(M) Guwahati vide order dated 07.07.2018 dismissed the said appeal thereby upholding the order dated 19.03.2014 passed by the learned Trial Court.

5. Being aggrieved, the defendant preferred a second appeal against the order being SAO No.9/2018 before this Court. The said SAO No.9/2018 was withdrawn with liberty to file a revision. Accordingly, the defendant filed a revision being CRP No.33/2019 before this Court and vide order dated 13.03.2019, this Court allowed the revision application by setting aside the order dated 07.07.2018 passed in Misc. Appeal No.9/2014 by the learned First Appellate Court and remanding the same to decide it afresh considering the observations made in the said order. In addition to that, this Court directed the parties to appear before the learned Appellate Court on 25.03.2019 and the learned First Appellate Court was directed to dispose of the appeal within a period of one month from the date of appearance. It is under such circumstances, that the impugned order dated 07.02.2020 was passed thereby setting aside the order dated 19.03.2014 passed in Misc.(J) Case No.384/2013 and with a direction to the parties to appear before the learned Trial Court for a decision on the Petition No.2319/2013 afresh for a consideration regarding the setting aside of the ex-partejudgment and decree in Title Suit No.263/2010. It is against the said order dated 07.02.2020 that the instant proceeding has been initiated.

6. Mr. OP Bhati, the learned counsel appearing on behalf of