The main legal point established in the judgment is the mandatory nature of the provisions of Order V, Rule 15, 17, and 19 of the Civil Procedure Code in serving summons and the necessity of complying with the prescribed procedure for service of summons.

Heard on the question of admission.

The applicant (hereinafter referred to as “the defendant”) has filed the present revision under section 115 of Civil Procedure Code challenging the order dated 3-5-2016 passed in Civil Misc. Appeal No. 4/2016 by First Additional District Judge, Barwani and order dated 12-1-2016 passed by Civil Judge, Class-I, Rajpur in MJC No. 2/2014 by which the Court has refused to set aside the ex parte judgment and decree dated 29-9-2010.

2. Facts of the case are as under:—

(a) The Respondent/plaintiff filed the Civil Suit No. 10-A/2010 seeking possession of the house. The suit was filed 19-7-2010 in which the summon was issued to the present applicant/defendant on 29-7-2010. The service of the notice was served to the wife of the defendant who refused to receive the same. The Process Server-Ashok Verma submitted his report to the Court (Ex.P/7) dated 29-7-2010 and on the basis of the said report, the present applicant has been proceeded ex parte. Thereafter the ex parte judgment and decree dated 29-9-2010 was passed against him.

(b) After the judgment and decree, the plaintiff filed the execution proceedings. When the present applicant/defendant received the notice of execution case, then he came to know about the judgment and decree dated 29-9-2010. The present applicant filed an application under Order IX, Rule 13 of Civil Procedure Code on 31-10-2011. Since the limitation to file the application has expired, therefore, he filed an application for condonation of delay. By order dated 17-11-2012 the learned trial Court has allowed the application under section 5 of the Limitation Act and condoned the delay.

(c) In support of the application for setting aside ex parte decree, the present applicant examined himself as PW-1; his wife Smt. Laxmi as PW-2. The Non-applicant/plaintiff examined Process Server Ashok Verma as NAW-1 and Kamal Sharma as NAW-2. All the witnesses were cross-examined. Vide order dated 12-1-2016 the learned trial Court has rejected the application under Order IX, Rule 13 of Civil Procedure Code on the ground that the summon of the Court was duly served to the defendant's wife and despite that the he did not appear before the Court, therefore, the ex parte judgment and decree cannot be set aside.

(d) Being aggrieved by the order dated 12-1-2016, the applicant preferred Misc. Appeal under Order XLIII, Rule 1 of Civil Procedure Code. Vide order dated 3-5-2016 the learned ADJ has dismissed the appeal and affirmed the order of the trial Court. The learned appellate Court has rejected the application on the ground that under the provisions of Order V, Rule 15 of Civil Procedure Code summon was duly served to the defendant's wife. Being aggrieved by the order dated 3-5-2016, the defendant has filed the present revision before this Court.

3. Shri J.B. Mehta, learned counsel appearing on behalf of the applicant/defendant submits that the summon dated 29-7-2010 was never served, neither to the defendant nor his wife. The address given in the plaint is incomplete. The Process Server has submitted false report. The witnesses of the Panchnama has not been examined. The learned Court has wrongly adopted the procedure under Order V, Rules 15, 17 and 19 of Civil Procedure Code. In support of his contention, he has placed reliance over the judgment of the Apex Court in the case of Sushil Kumar Sabharwal v. Gurpreet Singh, (2002) 5 SCC 377.

4. Shri B.K. Gupta, learned counsel appearing on behalf of the Respondent/plaintiff submits that the summons of the Court was duly served to the defendant's wife and despite that he did not appear, therefore, the Court has rightly proceeded under Order V, Rule 15 of Civil Procedure Code. Both the Courts have concurrently held that the summon was duly served, therefore, no interference is called for in the revision under section 115 of Civil Procedure Code. The scope of revision is very limited.

5. I have heard learned counsel for the parties and perused the record.

6.