The exparte proceedings were set aside as they were carried out in violation of the provisions of Order 5 of the Civil Procedure Code, and there was no negligence on the part of the defendants in avoiding service.

JUDGMENT

Harkesh Manuja, J.(Oral) - By way of present revision petition, the petitioners have challenged the order dated 02.12.2015 passed by learned Civil Judge (Junior Division), Charkhi Dadri whereby, an application filed on their behalf for setting aside exparte proceedings, has been dismissed.

2. It may be noticed here that the parties to the lis are related to each other being brothers and sister. A suit for declaration and permanent injunction came to be filed at the instance of respondent No.l/plaintiff and the proforma respondents. In the said suit, summons were issued for effecting service upon the petitioners who happened to be defendant Nos. 3 & 5. Relevant Zimni orders passed by the learned trial Court from pages 7 to 10 of the paper-book are reproduced hereunder

'Order dated 25.10.2012

Notices to defendant Nos. 2 to 5 could not be issued for want of summons and copies etc. Plaintiff has filed his affidavit containing new address of defendant Nos.2 and 3. Plaintiff is also directed to file summons and copies of plaint etc. within one week positively and then notice to defendant Nos.2 to 5 be issued for 30.11.2012 on filing of RC, AD etc. Notice to defendant Nos. 2 and 3 be issued at their new address filed today. Dasti summons be also given, as per request of the plaintiff.

Order dated 8.4.2013

Previous cost paid. Notice issued to defendants No.4 and 5 received back unserved for want of correct address. Let, fresh notice to defendants No.4 and 5 be again issued for 3.6.2013 on filing of PF and correct address etc. Case called several time since morning, but no one has appeared on behalf of defendants No.2 and 3. It is already 2.30 PM. Waited sufficiently. No further wait is justified. Hence, defendants No.2 and 3 are proceeded against exparte.

The file was taken up on 4.5.2013 and the Court was remain closed for civil work w.e.f. 1.6.2013 to 30.6.2013, therefore, the matter was adjourned for 19.8.2013 for the purpose already fixed.

Order dated 29.11.2013

Publication issued to defendants No.4 and 5 received back duly effected. Case called several times since morning but none has appeared on behalf of defendant No.8. It is already 2.30 PM. No more wait is justified. Hence, defendants No.4 and 5 are hereby proceeded ex parte. Now to come up on 27.1.2014 for filing replication and framing of issues."

3. A perusal of the above mentioned zimni orders shows that petitioner No.l who has been arrayed as defendant No.3 in the suit was proceeded against exparte vide order dated 08.04.2013 whereas, petitioner No.2, who has been arrayed as defendant No.5 was proceeded against exparte vide order dated 29.11.2013.

4. Having come to know about the exparte proceedings being carried out against them, the petitioners moved an application dated 09.11.2015 before the learned trial Court for setting aside the exparte proceedings, which has been dismissed vide impugned order 02.12.2015.

5. Learned counsel for the petitioners contended that the provisions of Order 5 CPC were never complied with while effecting service upon the petitioners. He refers to the order dated 08.04.2013 to contend that petitioner No.l was proceeded against exparte in violation of provisions of Order 5 CPC as no satisfaction was ever recorded by the learned trial Court regarding summons having been served upon petitioner/defendant No.3, while passing the order dated 08.04.2013. He further submitted that as regards petitioner No.2 i.e. defendant No.5, once a report has come that the notice could not be served upon her for want of correct address, unless respondent No.l had provided the same, her correct address, no order for substituted service could have been passed by the learned trial Court. Based on this, he also contends that the exparte proceedings ordered against petitioner No.2 relying upon the publication carried out in newspaper 'Hari Bhumi' was totally against the procedure.

6. On the other hand, a perusal of file shows that despite service, no one has chosen to app