The judgment emphasizes the importance of proper service of summons and the need for the court to ensure that procedural provisions further the cause of justice and determine the real controversy between the parties.

Swatanter Kumar, J. - This revision is directed against the order dated 29.1.1998 passed by the learned Additional District Judge, Gurdaspur, while exercising its appellate jurisdiction, whereby the appeal preferred by Shri Ajit Singh was dismissed. The appeal was preferred against the order of the learned trial Court dated 19.2.1994 dismissing an application of the said defendant under Order 9 Rule 13 read with Section 151 of Code of Civil Procedure.

2. A suit for possession by means of specific performance was filed by Santokh Singh against Gurbachan Singh. This suit filed by the plaintiff was decreed ex parte by the learned trial Court vide its judgment and decree dated 1.9.1988. Gurbachan Singh applicant filed an application under Order 9 Rule 13 read with Section 151 CPC stating that he had no knowledge about the pendency of the suit and he came to know of the passing of the ex parte decree only when notice of the execution proceedings was served upon him. Gurbachan Singh who filed the application, died during the pendency of the application/suit. Ajit Singh and others were then brought on record as legal representatives of the deceased. He claimed that he had come to know of these proceedings on 18.2.1989 and filed the application for setting aside the decree on 14.3.1989. He specifically contended that the deceased defendant Gurbachan Singh was neither served in accordance with law nor he had the knowledge of proceedings and as such the ex parte decree was liable to be set aside.

3. This application of the defendant was contested by the plaintiff. The learned trial Court framed issues and parties were permitted to lead evidence. The learned trial Court dismissed the application and declined to set aside the ex parte judgment and decree in question. It was noticed by the learned trial Court that the deceased had refused to accept notice and was served by affixation. As such there was no reason for the Court to set aside the ex parte judgment and decree. As already noticed, appeal against this order dated 19.2.1994 was also dismissed by the learned first Appellate Court.

4. A question that arises for consideration in this revision petition is whether deceased Gurbachan Singh was served in accordance with law and he had knowledge of the proceedings pending in the suit. The process server is stated to have made the following report on the basis of which the ex parte proceedings were taken against the deceased Gurbachan Singh :-

"Sir, It is prayed that today dated 25.3.1987 after going to the village Dariwal Daroga in the afternoon, Gurbachan Singh son of Udham Singh, Zail Singh son of Santa Singh were informed about the date fixed in the titled case and asked them to accept the summons but they refused to do so. A copy was pasted. Report is submitted.

Sd/-

Prem Singh

25.3.87

Witness : Smt. Sukhwinder Kaur, wife of Santokh Singh RTI."

5. It is clear from the above report of the process server that it is not in accordance with law. The process server was required to make a report in accordance with law and it ought to be witnessed by an independent person. The bare reading of the report shows that it was witnessed by one Smt. Sukhminder Kaur who is stated to be the wife of Santokh Singh, the plaintiff in the suit. It cannot be reasonably comprehended that the service upon the deceased was properly effected and he had actually refused to accept the summons/notice. The address as given is of the village and surely in the entire village the process server could at least find a single independent witness, whether man or woman, except the wife of the plaintiff himself. From the judgments of the learned Courts below it appears that this pertinent fact escaped their notice.

6. Merely because a date of knowledge was not specifically mentioned in the application the learned Courts could not have drawn a presumption against the applicant. Another factor which cannot be ignored by the Court is that Gurbachan Singh had admittedly