The main legal point established in the judgment is that the service of notice must comply with the procedural rules outlined in Order 5 Rules 15, 17, and 19 of the Code of Civil Procedure, and non-compliance with these rules can lead to the setting aside of the judgment and decree.

The appellant/defendant has filed this appeal being aggrieved by the judgment and decree dated 13-9-1995 passed by the 4th Additional District Judge, Rewa, in Appeal Case No. 15-A/1993 whereby the judgment and decree dated 22-2-1991, passed by Civil Judge Class I, Mauganj, District Rewa, in Case No. 198-A/1991, has been affirmed.

2. The brief facts giving rise to the present appeal are that the respondents alongwith their mother, Smt. Sumitra wife of Kaushal Prasad filed a civil suit for declaration in respect of Khasra No. 192, area 0.69 decimal situated in Village Virha Gopal, Tehsil Hanumana, District Rewa, on the ground that the land, in question, initially belonged to one Omkarnath who died leaving behind only one issue, i.e., Sumitra, who had executed a Will in favour of the respondent Nos. 1, 2 and 3 and that they are in possession of the said land since then but the appellant on false averments has got the land mutated in his name and was attempting to interfere in their possession. The respondent Nos. 1 to 3, therefore, sought a decree for declaring the proceedings of the Revenue Authorities dated 22-11-1982 passed in Case No. 168-B-21/78-79 as null and void.

3. Notice of the suit was issued to the appellant by the Trial Court on 11-7-1985 for taking up the matter on 6-12-1985 on which date the Court proceeded ex pane against the appellant by taking note of the fact that the notice has been served by affixation and passed an ex pane judgment and decree on 22-2-1991. The appellant being aggrieved, filed an appeal against the aforesaid judgment and decree of the Trial Court which has also suffered dismissal by the impugned judgment and decree passed by the Lower Appellate Court, dated 13-9-1995. Hence, this appeal.

4. This Court by order dated 17-2-2010 has admitted this appeal on the following substantial questions of law :-

"Whether the Courts below have committed grave error in holding that the summons of the suit was duly served on the appellant when the same was not sent for service alongwith copy of the plaint, in compliance of the mandatory provision of Order 5 Rule 2 of the CPC. If so then its effect ?"

5. It is submitted by the learned Counsel for the appellant that the Courts below have proceeded ex pane against the appellant by treating the notice to have been served on the endorsement of the process server who has made a note on the notice that the appellant was not available in his house, his wife was sought to be served with the notice who refused to accept the same and, therefore, the notice was affixed. It is submitted that the service of notice on the appellant is in fact contrary to the provisions of Order 5 Rules 17 and 19 of the Code of Civil Procedure inasmuch as service of notice by affixation could only be effected in case the requirement of Rule 17 were fulfilled and completed and the service could have been declared to have been effected only after obtaining an affidavit of the process server or examining him in accordance with Rule 19 of Order 5 of the Code of Civil Procedure. It is submitted that the Trial Court has failed to do so and, therefore, the ex parte decree passed by the Trial Court and affirmed by the Lower Appellate Court deserves to be set aside.

6. It is also contended by the learned Counsel for the appellant that a copy of the plaint alongwith the notice was also required to be attached but as the same was not done, therefore, the service was not proper and could not be said to be in accordance with law in view of the mandatory provisions of Order 5 Rule 2 of the Code of Civil Procedure.

7. The learned Counsel appearing for the appellant/defendant relied upon the decision of this Court rendered in Sitaram Vs. Kalawati, 1986 MPLJ 67, Charanlal Patel Vs. Smt. Kavita Jain and another, AIR 1998 MP 16, Suresh Kumar Vs. Godavaribai, 1991 MPLJ 843, State of Jammu & Kashmir and others Vs. Haji Wall Mohammed and others, AIR 1972 SC 2538 and The Commissioner of Income Tax, West Bengal