Proper service of summons is crucial, and failure to adhere to the prescribed procedure can lead to the conclusion of non-service, as highlighted by the Supreme Court decisions referenced in the judgment.

JUDGMENT

1. Heard finally with the consent of the parties.

2. This civil revision has been filed by the petitioner under Sec. 115 of Code of Civil Procedure, 1908 against the order dtd. 8/1/2013, passed by the learned IInd Additional District Judge, Khargone, District-Khargone (M.P.) in Miscellaneous Appeal No.35/2012, whereby the learned Judge of the District Appellate Court has reversed the order dtd. 7/9/2012 passed in MJC No.6/2012 by IIIrd Civil Judge Class-II whereby, the application filed by the defendant Nos.3 and 4 under Order 9 Rule 13 of CPC was rejected. Through the impugned order dtd. 8/1/2013, the District Appellate Court has allowed the appeal and remanded the matter back to the Trial Court by restoring the civil suit.

3. In brief, the fact of the case are that the civil suit was filed by the petitioner/plaintiff for declaration, possession and mesne profit against the respondents/defendants in respect of land situated at Khasra No.36 at Village- Amba, District- Khargone (M.P.). In the aforesaid suit, the notices were issued to the defendants, however, only the defendant Nos.3 and 4/ the respondent Nos. 1 and 2 of the revision filed the written statement and contested the matter whereas, the defendant Nos.1 and 2, who are the respondent Nos.3 & 4 in the revision, remained ex-parte. The decree was passed on 5/5/2011, and put in execution, and again, when the notices were served on the defendant Nos.3 and 4, they came to know about exparte decree and filed an application under Order 9 Rule 13 of CPC for setting aside the ex-parte decree, which was rejected by the Trial Court vide order dtd. 7/9/2012, holding that the defendant Nos.3 and 4 were properly served and despite service of notice, they refused to mark their appearance before the Court. Thus, the application to set aside the ex-parte order was rejected against which the defendant Nos.3 and 4 preferred the appeal No.35/2012 before the IInd Additional District Judge, Khargone, who has reversed the order passed by the Trial Court, holding that the defendant Nos.3 and 4 were not properly served.

4. Counsel for the petitioner/plaintiff has submitted that the learned Judge of the District Appellate Court has erred in not appreciating the second proviso to Rule 13 of Order 9 of CPC, which provides that no Court shall set aside a decree passed ex- parte merely on the ground that there has been an irregularity in the service of summons, if it is not satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer plaintiff's claim.

5. In support of his submissions, Shri Sohani, learned counsel for the appellant has relied upon a decision rendered by the Supreme Court in the case of Mst. Bhabia Devi Vs. Permanand Pd. Yadav reported as AIR 1997 SC 1919.

6. The prayer is opposed by Shri D. S. Kale, learned counsel appearing for the respondent/defendant Nos.3 and 4, and it is submitted that no illegality has been committed by the District Appellate Court in holding that the respondent Nos.3 and 4 were not properly served. In support of his submissions, Shri Kale has also relied upon another decision rendered by the Supreme Court in the case of Sushil Kumar Sabharwal Vs. Gurpreet Singh reported as (2002) 5 SCC 377.

7. Shri Kale has also submitted that, admittedly, in the present case, the notices were tried to be served by the process server however, when the process server DW-1 went to the house of defendant Nos.3 and 4, he found that only Hira Singh, the defendant No.3 the husband of defendant no.4 Anita was present in the house, and defendant No.4 Anita was not present, thus, he tried to serve the summon on Hira Singh only, but he refused to accept it, and in such scenario, it was incumbent upon the process server to affix the notice as provided under Order 5 Rule 17 of CPC, and in the absence of such affixture of notice on the house of defendant Nos.3 and 4, it has to be presumed that they were not served at all. It is also