The legal point established is that the process server's reports must be witnessed, and the court must record satisfaction of 'deemed' service. The petitioner should have been given an opportunity to lead evidence to rebut the presumption of service.

JUDGMENT

Archana Puri, J. - Challenge in the present revision petition is to the judgment dated 20.04.2021 passed by learned Addl. District Judge, thereby, affirming the order dated 13.02.2021 (Annexure P-12) passed by learned Civil Judge (Sr. Divn.), whereby, an application under Order 9 Rule 13 CPC, filed by the petitioner was dismissed.

The background facts, having bearing on the controversy, in nutshell, are as follows:-

2. That, initially, respondent-plaintiff Gaurav Madaan had filed a suit for seeking recovery of Rs.4 lakh against Ms/ Shankar Lal Kashmiri Lal through its partner Chiranji Lal and he also impleaded three partners of the aforesaid firm as defendants No.2, 3 and 4. The present petitioner was impleaded as defendant No.3, in the aforesaid suit. However, the suit was only contested by respondent No.4 Kashmiri Lal, whereas, defendants No.1 to 3 (including present petitioner) were proceeded against ex-parte. Ultimately, the suit was decreed on 21.05.2019.

3. On coming to know about passing of the ex-parte judgment in the aforesaid suit, the petitioner-defendant No.3 filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte judgment dated 21.05.2019 and ex-parte order dated 13.07.2018. However, the said application was dismissed vide order dated 13.02.2021 and lower Appellate Court, affirmed the said order vide impugned judgment dated 20.04.2021.

4. Feeling aggrieved, the petitioner-defendant No.3, has filed the present revision petition.

5. In pursuance of the notice issued, contesting respondent No.1 made appearance through counsel.

6. Learned counsel for the parties heard and record perused.

7. In the application under Order 9 Rule 13 CPC, the stand taken by petitioner-defendant No.3 is that summons regarding institution of the suit were never served upon her nor any effective service was effected upon her. In this manner, she was not at all aware about the pendency of the suit. Further, it is claimed that the plaintiff (respondent No.1 of the present case) is a clever person and he must have procured false report on the summons, allegedly issued to defendant No.3 (petitioner) that defendant No.3 has refused to accept the summons, whereas, neither any Process Server had visited the house of the defendant No.3-petitioner nor any other effective information was received by her, which clearly shows that the report, is a result of active collusion between plaintiff-respondent No.1 and the Process Server and the same had been procured by the plaintiff-respondent No.1 for obtaining ex-parte judgment. Moreover, the alleged refusal report also does not bear the signatures of any respectable person of the neighbourhood or the MC of the area. The ex-parte order as well as the ex-parte judgment are against the principle of natural justice, as no effective opportunity of hearing was ever afforded to defendant No.3 (petitioner) and that it is settled law that no one should be condemned unheard. Now, under the guise of the ex-parte judgment dated 21.05.2019, the plaintiff-respondent No.1 is all out to get the same implemented. Rather, there are relevant grounds with defendant No.3-petitioner to defend the suit on merits and there is every possibility of dismissal of the suit, on the basis of the material available on record.

8. In reply, plaintiff-respondent No.1 Gaurav Madaan had taken the stand that Neelam Rani-defendant No.3 was duly served with the summons and she knew the proceedings very well, but intentionally delayed the matter, just to prolong the proceedings. Also, it is averred that the detail has been given qua number of times, the Process Server had visited the house of defendant No.3-petitioner and that she refused to sign the same and thereafter, she did not allow the summons and copy of the plaint, to be affixed on her house. In this way, it was averred that she was duly served, but she intentionally refused to sign the summons and so, the ex-parte proceedings were rightly conducted and ultimately,