The service of summons is not duly served if the process server does not identify the person refusing the summons.

S.S.Sudhalkar, J.

1. Heard the learned counsel for the petitioners. Petitioners had filed an ejectment petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, before the Rent Controller. The petition ended in ex parte order of ejectment on 28.2.1998. The respondent filed an application for setting aside the ex parte order before the learned Civil Judge (JD) Karnal. The said application was allowed. Being aggrieved by the said order, the petitioners have filed the present revision petition.

2. Learned counsel for the petitioners has raised the following two points:-

1) That the learned Civil Judge (JD) was wrong in holding that it was necessary for somebody to identify the person refusing the summons.

2) That the application was filed beyond the period of limitation and the right which got vested in the petitioners cannot be taken away by setting aside the ex parte decree.

3. Regarding, the first point there was an endorsement on the summons that the respondent had refused and the same were affixed on the outer door of his premises and hence the order was passed for proceeding ex parte against the respondent. The provision regarding service of summons appears in Order 5 Rule 17 of the Code of Civil Procedure (hereinafter referred to as the Code), which reads thus:-

"Procedure when defendant refused to accept service or cannot be found-where the defendant or his agent or such other person as aforesaid refused to sign the acknowledgement. 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."

4. It is argued by the learned counsel for the petitioners that it is not necessary to get the person refusing the summons identified otherwise the word "if any" would not have been incorporated in the order. In support of this argument he has cited the case of Sahara Deposits and Investments (I) Limited v. Karan Singh, (1996-3)114 P.L.R. (Delhi Section) 15. It has been held therein that the service by affixation need not be in the presence of witnesses and the discretion lies with the court to accept service as sufficient or not. It has also been held in the said judgment that the underlying object behind the aforesaid provisions is to insist on the presence of one respectable person of the locality who may identify the house or property on which the process was affixed so as to eliminate the possibility of the process being affixed on a house or property with which the person sought to be served has nothing to do. It is further held that the provision of identifying the property is merely by way of caution and it is directory and not mandatory. It is also observed that the most reasonable view to be taken would be to leave the question of sufficiency of service in an individual case being determined by the Court which may before proceeding ahead with hearing of a matter on merits form its opinion whether it was satisfied on the sufficiency of service by affixation as disclosed by the report of process server and/or from the inquiry made by the Court which it may deem fit to make regarding the matter or events touching the service.

5. Learned counsel for the petitioners further argued that after the service of the summons by affixation, the Court has observed in his order that the summons were duly served.

6. However, it can be seen that when the application for setting aside the ex parte decree was filed, the parties had led evidence on issues framed. The process server was also examined by the present petitioners and I r