The requirements of Order 5 Rule 17 C. P. C. for service of summons must be strictly complied with, and failure to do so renders the service defective.

D. P. S. CHAUHAN, J.

( 1 ) CIVIL Suit (No. 8-A/94) was filed for ejectment of the present applicant Charanlal Patel on 16-3-94. The notices were issued to him by the civil Court by process and the same were returned with the following endorsements :the trial Court found the service sufficient and proceeded ex parte and the suit was decreed ex parte on 6-5-94.

( 2 ) ON 15-11-94, the present applicant filed an application for setting aside the ex parte judgment and decree under Order 9 Rule 13 C. P. C. which was rejected by the trial Court on 13-5-96 as the trial Court was not satisfied.

( 3 ) BEFORE the trial Court, process server and one Lakhmichand were examined. An appeal was preferred before the lower appellate Court under Order 43 Rule 1 (a) C. P. C. which appeal was dismissed on 2-12-96 and this order dated 2-12-96 is the subject-matter of the present revision.

( 4 ) THE revision was not admitted but this Court on 19-12-96 passed an order for listing the revision for final disposal in motion hearing on 20-1-97. The case was listed on 21-1-97 on which date the case was passed over for 22-1-97 On 22-1-97 the case was directed to be posted on 28-1-97 and in the meantime the lower Court's record was sought to be requisitioned as per the order dated 19-12-96.

( 5 ) HEARD the learned counsel for the parties at length.

( 6 ) THE questions for consideration are; (I) Whether the service was effected in accordance with the provisions of Order 5 Rule 17 C. P. C. ?"and (ii) further whether the delay has been properly explained and sufficient cause has been made out ?

( 7 ) LEARNED counsel for the applicant submitted that the requirement of Order 5 Rule 17 C. P. C. not having been complied with, the orders suffer from infirmity, rendering the ex parte decree as illegal. "17. Procedure when defendant refused to accept service, or cannot be found.-Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant (who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. "there has been amendment and the proviso was added to the Rule 17 on 16-9-1960 and the said proviso is also quoted below :-"provided that where a special service has been issued and the defendant refused to sign the acknowledgment, it shall not be necessary to affix a copy as directed hereinbefore. "

( 8 ) THE learned counsel for the applicant submitted that in this case the process server reported that the present applicant refused to accept the summons. The learned counsel submitted that the requirement of law is that "where the defendant or his agent or such other person as aforesaid i. e. as provided in the rules, refuses to sign the acknowledgment,", then, the serving Officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumsta

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