1. With the consent of learned counsels for the parties, the appeal is heard finally at the admission stage.

2. The present misc. appeal filed by the appellant-defendant under Order XLIII Rule 1 (d) of CPC arises out of the order dated 17.10.2013 passed by the Additional District Judge, Shahpura, District Jaipur (hereinafter referred to as “the trial court”) whereby the trial court has dismissed the application being No.2/2005 filed by the appellant-applicant under Order IX Rule 13 of CPC for setting aside the exparte decree dated 28.01.2005 passed in the Civil Suit No.11/2002, filed by the respondents-plaintiffs seeking specific performance of an oral agreement alleged to have been made by the appellant-defendant in respect of the suit lands and for damages.

3. The short facts giving rise to the present appeal are that the respondents-plaintiffs had filed the civil suit against the appellant-defendant seeking specific performance of the oral agreement allegedly made by the appellant somewhere in the year 2000. In the said suit, the trial court treating the service of summons to the appellant by a registered A.D. sent at the address of the appellant's business premises, as sufficient service, proceeded exparte against him and passed the decree on 28.01.2005. According to the appellant, he was never served with any summons either at his residential address or at his business address, and he came to know about the said exparte decree, only on 02.04.2005, when he received the notice of the Advocate Shri Ravi Shankar Agrawal of the respondents-decree holders. He, therefore, filed the application under Order IX Rule 13 for setting aside the exparte decree passed in the suit. The said application has been dismissed by the trial court vide the impugned order against which the present appeal has been filed.

4. Learned senior counsel Mr. N.K. Maloo for the appellant-defendant taking the Court to the record of the suit, submitted that the appellant-defendant was not served in the suit either at the residential address or at the business address. Relying upon the endorsement of LWA put on the envelop by the postman on 12.12.2002, he submitted that the trial court while dismissing the application of the appellant under Order IX Rule 13 by the impugned order, has committed gross error in treating such endorsement as 'refusal' and the proper service. He further submitted that the appellant and his wife had specifically stated in their respective evidence in the proceedings under Order IX Rule 13 that they had not received any summons at their business premises also, and that there was no person named Mr. Rawat working at their firm whose signature appear on the A.D. slip dated 30.11.2002. Relying upon the various decisions of the Supreme Court and the High Court, he submitted that since the appellant-defendant was not served with any summons in the suit, the present appeal deserves to be allowed. However, the learned counsel Mr. Mahendra Goyal for the respondents submitted that the appellant himself had shown his business address of Arun Industries in the application filed by him before the Income Tax Department in the year 2000 (Exhibit-20A), which was the same address mentioned by the respondents-plaintiffs in the cause title of the suit. He further submitted that the summons sent to the appellant at his business address through registered post, was received back duly signed by one Mr. B.S. Rawat, and the summons sent at his residential address had returned with the postal endorsement LWA, which has been rightly treated as proper service by the trial court. Placing reliance on the decision of the Supreme Court in case of M/s. Madan & Co. versus Wazir Jaivir Chand, AIR 1989 Supreme Court 630 (1), he submitted that the endorsement LWA i.e. left without address should be considered as proper service. Lastly, he submitted that as per the second proviso to Order IX Rule 13, the Court should not set aside the exparte decree merely on t