Proper service of notice is essential for setting aside an ex-parte judgment and decree, and the authentication of the report of refusal is necessary for justifying substituted service.

VIJENDER SINGH MALIK, J. - Piare Lal, petitioner had brought a suit for possession by way of ejectment of M/s Modern Automobiles, Karnal from a premises claimed to be owned by him and occupied by M/s Modern Automobiles and another as tenants. In the said suit, M/s Modern Automobiles and other defendants had been proceeded against ex-parte on 5.8.2009. After taking the evidence of the plaintiff, an ex-parte decree was passed on 12.1.2010.

2. M/s Modern Automobiles filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte judgment and decree dated 12.1.2010 on the ground that the applicants were not served with a notice of the suit properly and that decree passed ex-parte against them on 12.1.2010 is liable to be set aside. They have claimed that they came to know of the ex-parte decree passed against them only on 4.2.2010 when an employee with them received notice of the execution application along with notice of ex-parte order dated 12.1.2010 and on receipt of the said notice, they have filed the application in hand on 11.2.2010.

3. The application has been opposed by Piare Lal, petitioner claiming the same to be abuse of process of the court. Plea of estoppel was also taken. It is claimed on merits that notices were duly served. According to him, Gurcharan Singh, process server (RW-3) from Chandigarh went to the residence of the defendants, where he was told that the defendant was at plot No. 4, MW, Industrial Area, Chandigarh, where M/s Modern Automobiles Workshop is situated. It is claimed that the process server was left with no alternative but to make a report of refusal on 26.3.2009. According to him, the defendants were then served by way of publication in The Tribune dated 31.7.2009 and inspite of the same, the defendants did not put in appearance in the suit. Asserting that there is no ground for setting aside the impugned judgment and decree, the application is prayed to be dismissed.

4. On the pleadings of the parties, learned trial court framed the following issues :

1. Whether there are sufficient ground to set aside exparte judgment and decree dated 12.1.2010 as prayed for? OPA

2. Whether the applicants is estopped from filing the present application by his act and conduct? OPR

3. Whether the application is not maintainable in its present form?OPR

4. Relief.

5. The parties led their respective evidence. Hearing learned counsel representing the parties, learned trial court has found under issue No.1, vide order dated 30.8.2011, that the applicants were not duly served in the suit and there are sufficient grounds for setting aside the ex-parte judgment and decree dated 12.1.2010. Consequently, the application was allowed and the judgment and decree dated 12.1.2010 have been set-aside.

6. Aggrieved by the aforesaid order, the present revision petition has been brought by the plaintiff.

7. I have heard Mr. B.S.Bedi, learned counsel for the petitioner and have gone through the record carefully.

8. Learned counsel for the petitioner has submitted that the summons in the suit were first directed to the Karnal address of the defendants and when it was reported on the same that the defendants resided at Chandigarh, notices were issued to them at their Chandigarh address. According to him, the process server went to the residence of defendants but he was told that they were at M/s Modern Automobiles Workshop in Industrial Area, Chandigarh. According to him, the process server was, thus, left with no option but to endorse the refusal of the defendants to accept the notice of the suit.

9. Learned counsel for the petitioner has further submitted that there after notice of the suit was published in The Tribune on 31.7.2009 and learned trial court has completely ignored this aspect of the evidence of the plaintiff. According to him, the service of the defendant-applicants by way of publication in The Tribune has no where been discussed by learned trial court.

10. Learned counsel for the petitioner has