The judgment emphasizes the importance of proper service of summons and the right of the defendant to contest the validity of service, as well as the conditions under which an ex-parte decree can be set aside under Order 9 Rule 13 of CPC.

V.K. Agrawal, J.

1. By the impugned order, application of defendant/respondent under Order 9 Rule 13 read with Section 151 of CPC, for setting aside ex-parte judgment and decree dated 25-10-91 in Civil Suit No. 105-A/91 was allowed and the suit was directed to be proceeded biparte.

2. The plaintiff/petitioner filed a suit for eviction of defendant/respondent. Summons for settlement of issues was issued by the Trial Court. The process server reported that the defendant/respondent had refused service of summons. Accordingly, the Trial Court proceeded against him ex-parte. After recording evidence of plaintiff/petitioner ex-parte judgment and decree was passed.

3. The defendant/respondent filed an application under Order 9 Rule 13 read with Section 151 of CPC, stating that the summon was never tendered to him and that he did not refuse to accept it and that the plaintiff/petitioner had obtained the ex-parte judgment and decree by playing fraud on the Court. Therefore, he prayed that the said ex-parte judgment and decree be set aside.

4. The plaintiff/petitioner resisted the application. According to him, the summons of the suit was duly tendered to the respondent and that he refused to take the same. The Trial Court was therefore justified in proceeding against him ex-parte, and the judgment and decree therefore does not deserve to be set aside.

5. The learned Trial Court after enquiry into the said application found that the summons of the suit was in fact never tendered to or refused by the defendant/respondent. His prayer for setting aside the ex-parte judgment and decree was therefore accepted, and the case was directed to be proceeded with biparte.

6. The learned counsel for the plaintiff/petitioner assailed the impugned order. It is submitted that the Trial Court in the suit examined the process server Guru Prasad before proceeding ex-parte against the defendant/ respondent. After feeling satisfied that the summons was tendered to him and was refused by the defendant/respondent, ordered ex-parte proceedings against him. It has further been submitted that the process server Guru Prasad has resiled from his earlier statement, in order to assist the cause of the defendant/respondent. It has, therefore, been submitted that as the service of summons of the suit on the defendant/respondent was proper; there was no justification for setting aside the ex-parte judgment and decree.

7. As against the above, the learned counsel for defendant/respondent has submitted that due service of summons on the defendant/respondent of the suit was essential. It has been submitted that the evidence led in the enquiry, on his application under Order 9 Rule 13 of Civil Procedure Code, clearly substantiate his averment that the summons was not duly served on him. Therefore, the Trial Court was justified in setting aside the ex-parte judgment and decree.

8. The question that requires consideration is, as to whether the summons for settlement of issues by the Trial Court was duly served on the defendant/respondent ?

9. It is noticed in the above connection that serving officer Guru Prasad (A.W. 5) examined by the defendant/respondent, in his examination-in-chief has stated that he had tendered summons on non-applicant No. 2-the present defendant/respondent, and that he had avoided taking summons. Therefore, he had appended his report at his home at the back of summons of defendant/respondent. He further states that when the defendant/respondent refused to take notice, he threw the summons at the non-applicant No. 2 and went away.

10. The above statement of process server Guru Prasad (A.W. 5), even if taken on its face value, would indicate that the report on the summons was not appended by him on the spot. Again from the report appended by the process server, at the back of summons the process-server did not state that the summons was served by him by throwing it, as he has tried to state during enquiry on the application under Order 9 Rule 13 of CPC, of t