The main legal point established in the judgment is that the application to set aside an ex parte judgment and decree should not be allowed solely on the ground of irregularity in the service of summons if the defendant had notice of the date of hearing and sufficient time to appear and answer the plaintiff's claim.

Vinod K. Sharma, J. (Oral) - The present revision petition has been filed against the order dated 23.8.2004 passed by the learned Rent Controller, Khanna vide which application moved by the petitioner under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree dated 3.8.2000, has been ordered to be dismissed.

2. The respondent landlord has filed a petition for eviction of the petitioner from the tenanted premises. Due to non-appearance of the petitioner ex parte proceedings were ordered and resultantly ex parte decree of ejectment was passed. Thereafter petitioner moved an application for setting aside the said ex parte order passed by the learned Rent Controller primarily on the ground that no service was effected on the petitioner. However, the learned Rent Controller dismissed the application by invoking the proviso to Order 9 Rule 13 CPC.

3. The learned counsel for the petitioner vehemently contends that the zimini orders on record show that the learned Rent Controller was wrong in ordering substituted service under Order 5 Rule 20 CPC first without taking steps to serve the petitioner by ordinary means. He made reference to the orders passed by the Rent Controller, which read as under :-

"Rajinder Kumar v. Gurpartap Singh etc.

Present :- Counsel for the petitioner.

Report of the reader seen. Petition be registered. Notice of main petition as well as of the application be issued to the respondent for 14.6.1996 on PFRC.

Sd/-

R.C. Khanna

19.4.1996

Present :- Counsel for the petitioner.

Defendant No. 2 is evading service. They be summoned through substituted service through Munadi & affixation for 24.9.1996 on deposit of necessary cheques. Defendant No. 1 be again summoned for date fixed on filing of correct address & RC.

Sd/-

Rent Controller

14.6.1996

Present : Counsel for the plaintiff.

Munadi not received back. Same be issued again for 30.10.1996 an old charges.

Present : Counsel for plaintiff.

Munadi issued against the defendant not received back. Same be issued again for 18.12.1996 on old charges.

Sd/-

RC 30.10.2006

Present :- Counsel for the parties.

Munadi against defendant No. 2 effected. None has come present on behalf of the defendant No. 2. Case called repeatedly. It is already 2.30 p.m. Notice issued to Respondent No. 1 received back with the report of refusal. Respondent No. 2 be summoned for 19.2.1997 through Munadi and affixation. Necessary charges be deposited within three days.

Sd/-

RC 18.12.1996.

Present :- Counsel/defendant No. 2 ex parte

Munadi received back duly effected. None has come present. Case called several times during the day. It is already 3.45 p.m. None has come present on behalf of respondent No. 1. Respondent No. 1 is therefore, proceeded against ex parte. Adjourned to 23.7.1997 for PWs.

Sd/-

RC 19.2.1997."

4. The learned counsel for the petitioner has also placed reliance on the judgment of this Court in the case of Gurinder Singh Sodhi v. Ramesh Kumari and others, 1997(2) Civil Court Cases 23 (P&H) to contend that the Court is bound to serve the parties personally and in case the defendant refuses to accept the service or cannot be found then the summons to be affixed on the outer door or some other conspicuous part of the house where the defendant ordinarily resides or carries on his business or personally works for gain. It has further been argued that mere informing the petitioner about the pendency of suit does not absolve the Court of performing its duties. The learned counsel for the petitioner also placed reliance on the judgment of this Court in the case of Ajit Singh v. Santokh Singh, 2004 RCR(Civil) 13 to contend that it was incumbent upon the Court to record that it was not possible to serve a party by ordinary means before ordering substituted service. The final contention of the learned counsel for the petitioner is that the order may be set aside on payment of costs.

5. I have considered the arguments of the learned counsel for the petitioner and find no force in the sa