The main legal point established is that the service of summons must strictly adhere to the requirements of the Civil Procedure Code, and non-compliance can result in the setting aside of court proceedings.

Judgment:

Sujoy Paul, J.

1. The petitioner/defendant No. 3 is aggrieved by order dated 18.2.2014 passed in Case No. 73A/2009 Civil Suit by Fourth Additional District Judge, Gwalior, whereby his application under Order 9 Rule 7 CPC dated 3.1.2014 is rejected.

2. The plaintiff filed a suit for partition and permanent injunction (Annexure P-2) on 1.4.2009. The notices were issued to the other side. The acknowledgments of notices issued by the court for defendant No. 3 were not received back by the court.

3. The court below on 22.4.2009 passed a detailed order recording that an effort was made to serve the petitioner/defendant No. 3 by sending notice by registered post. The envelope is received back with the endorsement that "at the time of distribution, the petitioner was not found". The court below after perusal of that endorsement opined that the petitioner's shop is situated just in front of the court where he can be served in 15 minutes. Resultantly, the court below directed the District Nazir to serve the defendant No. 3 and submit its report at 3.00 p.m. The matter was taken up at 3.00 p.m. On perusal of the report of the process server, the court below opined that the special summon sent through process server must be treated as served. Thus, the court below proceeded against the petitioner/defendant No. 3 ex parte. The court below considered the report of the process server (Annexure P/4) while passing the aforesaid order. The petitioner preferred application under Order 9 Rule 7 CPC on 3.1.2014. It is urged that the notices were never served on him. He overheard the discussion between plaintiff and other defendants and then came to know that some matter is pending in the court. After enquiring about the matter, he came to know that the instant civil suit is pending and he has been treated as served. Since the petitioner is not served and he was not aware about the proceedings, the order be recalled and he be permitted to put forth his case.

4. The prayer was opposed by the plaintiff by filing reply, Annexure P/7, on 29.1.2014. The court below heard the parties on 18.2.2014 and rejected the application of the petitioner.

5. Shri N.K. Gupta, learned counsel for the petitioner submits that the notices are required to be served in consonance with Order 5 Rules 17, 18 and19 of CPC. He also relied on Rules 56 and 71 of the Civil Court Rules. He submits that the court below has erred in passing the order dated 22.4.2009 on the basis of the report of process server. The process server's report is not in conformity and requirement of aforesaid provision of CPC and Civil Court Rules. He further submits that the suit was filed on 1.4.2009 and during the same month the court proceeded ex parte. There was no material on record to show that the petitioner was either avoiding service or he was served with the notices. Apart from this, he submits that at best, the court below could have closed the right of filing written statement, but the court could not have proceeded ex parte. To elaborate, Shri N.K. Gupta submits that as pr Order 17 Rule 2 CPC, the ex parte order can be passed when the matter is posted for hearing, if it is for taking up of evidence or hearing of arguments, the court can proceed ex parte. In the instant case, when the court proceeded ex parte, even trial had not begun and, therefore, the order is bad in law. Shri N.K. Gupta, learned counsel for the petitioner relied on certain judgments.

6. Shri V.K. Bharadwaj, learned senior counsel and Shri Avinash Karpe, learned counsel for the respondents, supported the order passed by the court below. Shri Bharadwaj, learned senior counsel submits that there is no infirmity in the report of process server. The court below has not committed any legal error in passing the impugned order. By placing reliance on Order 9 Rule 6(1)(a), it is contended that if it is proved that the summon is duly served, the court is entitled to decide the suit ex parte. He further submits that the averments