The Court must be satisfied that the summons were duly served upon the defendant before passing an ex-parte order.

JUDGMENT

Prakash Gupta, J. - Instant miscellaneous appeal is directed against the order dated 21.04.2016 passed by the Additional District Judge No.16, Jaipur Metropolitan, Jaipur (hereinafter referred to as the "trial Court") whereby the application filed by the appellantdefendant under Order 9 Rule 13 CPC was dismissed.

2. Brief facts of the case are that the respondent-plaintiff filed a suit against the appellant-defendant for recovery of Rs.2,36,871/-.

3. In the above suit, when the appellant-defendant was not appeared, an ex-parte order was passed against him on 28.02.2009 and finally ex-parte judgment and decree was passed on 25.07.2009.

4. The appellant-defendant filed an application under Order 9 Rule 13 CPC to set aside the ex-parte judgment and decree. The application was dismissed by the trial Court vide impugned order dated 21.04.2016. The trial Court after discussing on the issue of service of the summons upon the appellantdefendant held that the service upon the defendants was proper and consequently dismissed the application.

5. I have heard learned counsel for the parties.

6. It is contended by learned counsel for the appellantdefendant that the service of summons was never affected upon the appellant-defendant. It is submitted that before passing exparte decree, the Court must be satisfied that the summons were duly served upon the defendant. The trial Court did not consider the material available on record in right perspective. The summons did not bear correct name of the Court where the appellant-defendant was to appear. No date of hearing was mentioned in the summons. It is submitted that acknowledgment receipt does not bear the signature of the appellant-defendant. The trial Court has failed to consider these material facts while deciding the application under order 9 Rule 13 CPC. It is prayed that appeal be allowed and ex-partee decree may kindly be set aside.

7. On the other hand, learned counsel for the respondentplaintiff opposed the submissions made by the learned counsel for the appellant-defendant and supported the impugned judgment.

8. I have considered the submissions made by the learned counsel for the parties and perused the material available on record.

9. In my considered view, before passing ex-parte order, the Court must be satisfied that the summons were duly served upon the appellant-defendant. The knowledge about the pendency of the suit does not amount to knowledge about the date of hearing.

10. In the case of Sushil Kumar Sabharwal vs. Gurpreet Singh & Others, (2002) 5 SCC 377 , Hon'ble the Apex Court has held as under:-

"7. Rules 17 and 18 of Order 5, C.P.C. which lay down the procedure of service when the defendant refuses to accept service and the endorsement to be made by the serving officer, read thus:

"17. Procedure when defendant refuses to accept service, or cannot be bound.-Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, 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 of some other conspicuous part of the house in which the defendant ordinarily reside 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.

18. Endorsement of time and manner of service.- The serving off