IMPORTANT POINT
Proper service of summons is essential for the validity of court proceedings, and failure to adhere to the prescribed legal procedures can result in the setting aside of ex-parte decrees.

JUDGMENT :

(Rekha Borana, J.) :

1. The present miscellaneous appeal has been preferred against the order dated 27.08.2016 passed by Additional District Judge, Churu in Civil Original Case No.11/2013 (61/2012) whereby application under Order 9 Rule 13 read with Section 151, CPC as preferred by the defendants-respondents has been allowed and as a consequence, the ex-parte decree dated 17.11.2012 passed by District Judge, Churu in Civil Original Suit No.47/2012 in favour of plaintiffs-appellants has been set-aside.

2. Brief facts of the case are that a suit for cancellation of sale deed dated 19.05.2006 and perpetual injunction was preferred by the plaintiffs with the submission that the defendants-respondents had fraudulently got the sale-deed registered in their favour by the appellants. It was pleaded that the actual fact is that the plaintiffs had borrowed an amount of Rs.15,000/-from the defendants and put their thumb impression on the document pertaining to the loan agreement. The defendants, on the premise of getting the mutation entries entered in the name of plaintiffs, took them to the office of Tehsildar and in conspiracy with the revenue officers, got the sale-deed registered in their name which the plaintiffs are entitled to get cancelled.

3. In the said suit, vide order dated 28.07.2012, the matter was directed to be proceeded ex parte against the defendants as despite service, none had put in appearance on their behalf. Ultimately, after the plaintiff evidence been recorded, the suit was decreed vide judgment and decree dated 17.11.2012 in favour of the plaintiffs and the sale-deed dated 19.05.2006 was directed to be cancelled. Further, the defendants were restrained from transferring or alienating the property in question.

4. An application under Order 9 Rule 13 read with Section 151, CPC was preferred by the defendants with the submission that they were never served in the suit. It is only on 25.11.2012, when plaintiff Nos.2 & 3 entered the land in dispute and threatened the defendants to vacate the land, that they came to know about the decree dated 17.11.2012. Hence, a prayer to set aside the said decree was made and it was prayed that the defendants be granted opportunity to file their defence as well as to contest the suit on merits.

The said application as preferred by the defendants was allowed vide order dated 27.08.2016 against which the present appeal has been preferred on behalf of the plaintiffs.

5. Learned counsel for the appellants submitted that it is clear on record that the summons were refused to be accepted by defendant No.1-Bhanwari and hence the summons were affixed, in terms of law, in presence of two independent witnesses. The service was hence, complete. Despite service, none appeared on behalf of the defendants and hence, the learned trial Court rightly proceeded ex parte against the defendants.

Learned counsel, in the alternate, submitted that even if it is assumed that notice was not properly served, it is clear on record that the defendants were very well aware of the next date of hearing and hence, the said non-service would be of no consequence. Therefore, in terms of proviso to Order 9 Rule 13, CPC also, the order impugned deserves interference. Learned counsel submitted that the order impugned being totally in contravention to the settled position of law deserves to be set aside and the appeal deserves to be allowed.

6. Per contra, learned counsel for the respondents submitted that the finding as arrived by the learned trial Court is totally in consonance with the settled position of law. A bare perusal of the report on the summons as alleged to have been served, makes it clear that the same cannot be termed to be a proper service in terms of law. Learned counsel therefore, submitted that the order impugned does not deserve any interference.

7. Heard learned counsel for the parties and perused the material available on record.

8. The question that arises for consideration in the pres