K.S. LODHA, J.— This is a plaintiffs revision against the order of the learned Additional District Judge, Udaipur dated 17.5.83 accepting the defendants appeal against the order of the learned Civil Judge, Udaipur dated 19.2.81 and setting-aside the exparte decree passed against the defendant Shanti Lal in a suit for recovery of money.

2. The first date of hearing fixed in the suit was 13.9 79. The summons sent to the defendant were returned with the report that he had gone to Bombay. The case was then adjourned to 4.12.79 and summonses were sent both in the ordinary course as also by registered post. The summons sent in the ordinary course was returned with the report that the defendant was at Bombay and would not return till 15.12.79. The summons sent by registered post was however, returned with the endorsement of refusal dated 20.11.79.

3. On 4.12.79 the staff of the Court was on strike and, therefore, the case could not be taken up. It was then taken upon 31.12.79 and adjourned to 13.3.80. The parties were not present on that day neither any notices were issued to them for the date of hearing 11.3.80. However, on 11.3.80 the plaintiff appeared but the defendant did not and in view of the endorsement of refusal on the summons for the date of hearing 4.10.79 the court recorded that the summons had been served and the defendant having not appeared, he was placed exparte. Exparte evidence of the plaintiff was recorded on 1.4.80 and decree was passed in his favour on 4.4.80.

4. The defendant moved an application on 8.5.80 for getting the exparte decree set-aside. His case was that the summons was neveer offered to him and he had never refused the same. He bad no knowledge of the decree till 8.5.80 when this application for setting-aside the same was moved. It was also mentioned that he also did not have any notice of the date of hearing 11.3.80. The plaintiff contested the application. His case was that the defendant had even on the earlier occasion made a wrong report to the effect that the defendant was at Bombay whereas he was present at Udaipur and the endorsement that the defendant had gone to Bombay was in his own hand. It was contended that the summons for 4.12.79 was offered to him but he refused the same. He had thus knowledge of the suit and of the decree and the application for setting-aside the decree was barred by time.

5. After taking the evidence of the parties and hearing them, the learned Civil Judge dismissed the defendants application holding that the defendant had refused the summons sent to him for the date 4.12.79 and had not appeared despite service. On appeal the learned Additional District Judge however, was of the view that the summons sent by registered post was not accompanied by a copy of the plaint as required by Order 5 Rule 2 C.P.C. and, therefore, the summons was not a proper summons and the refusal of such summons does not amount to proper service. He was further of the view that as on 4.12.79 the matter was not taken up by the court due to strike, the defendant was entitled to a notice of the next date of hearing but was not given any such notice and, therefore, also, an exparte decree passed on 4.4.80 was liable to be set-aside. Accordingly he sccepted the appeal and set-aside the exparte decree. The plaintiff has now come up in revision.

6. I have heard learned counsel for the parties.

7. The learned counsel for the petitioner at the first instance submitted that the endorsement on the summons for the date 13.9.79 to the effect that the defendant had gone to Bombay had been made by the defendant himself by inpersonating as Mohan Lal and the matter was enquired into by the learned Civil Judge and a criminal complaint has been filed against the defendant. The summons for the date of hearing 4.12.79 has been held to have been refused by the defendant by both courts-below. In these circumstances, the learned Additional District Judge could not have set-aside the exparte decree merely on the ground th

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