An irregularity in the service of summons is not a ground for setting aside an ex parte decree if the defendant had notice of the suit and the next date fixed in the suit.

1. - This appeal under Order 43 rule 1(d) C.P.C. has been directed against the order dated 7.9.1994, passed by the District Judge, Jaipur District, Jaipur, by which he dismissed the application of the defendant-appellant submitted under Order 9 Rule 13 C.P.C.

2. The brief relevant facts of the case are that the respondent filed a suit for recovery of Rs. 17,496/- against the appellant under Order 37 C.P.C. Summons for 19.9.1991, were issued to the appellant. The process-server reported on the summons that he offered the summons alongwith copy of plaint to the appellant but after reading them, he refused to accept the same. As no witnesses were available on the spot, as-such one summons could not be pasted on the house of the appellant. The District Judge found that the service was not sufficient. Again the summons were sent for 28.3.92. The summons were offered by the process-server to the appellant but he refused to accept the same and under these circumstances the process server affixed the summons on the outer-gate, of the appellant in the presence of the witnesses. The Court held that the service of summons was sufficient on the appellant. When the appellant did not appear inspite of service of summons, the Court ordered to proceed exparte against the appellant and, later on the suit was decreed vide judgment and decree dated 19.12.1992. On 21.12.1993, the appellant filed an application under Order 9 Rule 13 CPC Para No. 3 of the application reads as below:

";g fd ekU; U;k;ky; ds vkns'kkuqlkj lEeu vUrxZr vkns'k 37 fu;e 2 tk0nh0 dk fnukad 17-7-92 dks tkjh gqvk tks fnukad 7-3-92 gsrq Fkk exj mnr lEeu ds lkFk udy nkok ugha Fkk] ftldh rkfey Hkh 1-8-92 dks rkfcy dqfuUnk ftyk ,oa lS'ku U;k;k/kh'k] t;iqj uxj }kjk bl vk'k; ls djkbZ fd vkse izdk'k dks lEeu pIlk fd;k x;k] blls Li"V gS fd lEeu ds lkFk nkos dh udy layXu ugha dh xbZ Fkh vkSj u U;k;ky; }kjk gejkt Hksth xbZ Fkh] bl izdkj tks pLikuxh ls rkehy djkbZ xbZ] og M;w lfoZl dh rkjhQ esas ugha vkrh gS] tks dh dkuwuu vko';d Fkh feu izkFkhZ ij tks pLikuxh lEeu dh fn[kkbZ xbZ gS og Hkh dkuwuu lgh ugha gSA"

3. There is no mention in the application that the summons were never offered to the appellant by process-server and he never refused to accept the same. The only allegation is that for the first time, he came to know about the passing of the decree on 24.11.1993.The learned judge after hearing arguments of the counsel for the parties, vide his order dated 7.9.1994, dismissed the said application. Being aggrieved with the said order the appellant has filed the present appeal.

4. The argument of the counsel for the appellant is that the appellant had no knowledge of the filing of the suit by the respondent. For the first time, he came to know of passing of the decree on 24.11.1993. He immediately filed an application for setting-aside the exparte decree. The service was not proper as the copy of the plaint was not annexed with the summons.It amounts to illegality and not irregularity.The learned judge without considering all these aspects of the case rejected the application in arbitrary way. In support of his arguments, Shri Garg placed reliance on a judgment of this Court reported in Bheru Lal v. Shanti Lal, AIR 1985 Raj. 53.

5. On the other hand counsel for the respondent submits that the summons were sent thrice to the appellant. Previously the summons were offered to the appellant but he refused to accept the same after going through the summons and copy of 'the plaint but as there were no witnesses, the summons could not be pasted on the outer gate of the appellant. Under these circumstances the service was not found to be proper. Again the appellant refused to accept the summons. The process-server affixed the summons on the outer-gate of the appellant in the presence of the appellant. The Court held that the service of summons on the appellant was proper. Even if it be taken that the copy of the plaint was not annexed with the summons the appellant would have obtained