The court cannot set aside an ex-parte decree merely on the ground of irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and sufficient time to appear and answer the plaintiff's claim.

1. - The petitioner is aggrieved by the order dated 6.2.2014 passed by the learned Addl. District and Session Judge, No.19, Jaipur City (Sanganer), whereby the learned Judge has quashed and set aside the order dated 22.7.2013, wherein the learned Magistrate had rejected an application filed under Order 9, Rule 13 read with Section 151 CPC filed by the respondent.

2. The brief facts of the case are that the petitioner, Rukmani Devi, filed a suit for declaration and for permanent injunction against the respondent No.1, Jagdish Narayan. Allegedly, summons were issued. According to the order dated 16.1.2010, the learned trial court concluded that the summons have been duly served upon the respondent No.1. Therefore, by order dated 16.1.2010, an ex-parte proceedings were initiated against the respondent No.1. Eventually, by judgment and decree dated 15.12.2010, the case was decreed in favour of the petitioner, Smt. Rukmani Devi. However, subsequently when the respondent No.1 discovered that a decree has been passed against him, he filed an application under Order 9, Rule 13 CPC. In his application, he pleaded that in fact, no summons were served upon him. According to him, no summons had been pasted at his house. Further, according to him, the entire service of summons has been done cleverly by the plaintiff and the process server. Therefore, the ex-parte proceedings should have been set aside. But by the order dated 22.7.2013, his application was dismissed by the learned Magistrate. Aggrieved by the said order, the respondent had filed an appeal before the learned Judge. By the order dated 6.2.2014, the learned Judge has set aside the order dated 22.7.2013 and accepted the appeal. Hence, this petition before this Court.

3. Mr. Sanjay Mehrishi, the learned counsel for the petitioner, contended that according to the learned Magistrate, both the summons of civil suit as well as of temporary injunction application have been served. Therefore, the learned Magistrate was justified in rejecting the application. However, this aspect has been overlooked by the learned Judge. Thus, the learned Judge has erred in setting aside the order dated 22.7.2013. Secondly, according to Order 9, Rule 13 proviso (ii), no courts shall set aside a decree passed ex-parte merely on the ground that there has been some irregularities in the service of summons. Therefore, according the learned counsel, the learned Judge has erred in setting aside the ex-parte decree.

4. Heard the learned counsel for the petitioner and perused the impugned order.

5. Order 5, Rule 17 CPC deals with procedure to be adopted when defendant refuses to accept service, or he cannot be found. Order 5, Rule 17 CPC is as under:-

17. Procedure when defendant refuses to accept service, or cannot be found.- Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, [who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time] and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person(if any) by whom the house was identified and in whose presence the copy was affixed.

6. According to this provision, while pasting a copy of the summons on a conspicuous part of the house in which the defendant or