ORDER :

The present Misc. Appeal has been filed under Order 43 Rule (1)(i) (d) of the Code of Civil Procedure, 1908 (for brevity ‘CPC’) against the order dated 04.02.2017 passed in MJC No.431/2009 by 14^th Additional District Judge, Bhopal; whereby, appellants’ application under Order 9 Rule 13 CPC for setting aside ex-parte judgment and decree dated 28.06.2007 passed in Civil Suit No.517-A/2006 has been dismissed.

2. The short facts giving rise to the present appeal are that the respondent/plaintiff filed a suit for specific performance and permanent injunction in regard to land in question bearing survey No.109, details of which are mentioned in paragraph 01 of the judgment dated 28.06.2007 passed in original Civil Suit No.517-A/2006.

3. The suit was filed on the basis of a sale agreement dated 12.10.1999 (Exhibit-P/2) and a receipt dated 20.06.2002 executed by one Smt. Rais Jahan. It is averred in the plaint that the agreement was executed by Smt. Rais Jahan which was acknowledged by her legal representatives namely Iqbal Mohd., Sikander Mohd., Iftikhar Mohd., Farid Mohd., Farrukh Jahan, Mahar Parwar Jahan, Shah Parawar Jahan and Taj Parwar Jahan and given consent by making signatures over the agreement. Prior to filing of the suit, Smt. Rais Jahan had expired on 17.04.2003. The suit was filed on 18.12.2006. It is the case of the appellant that the appellant was declared ex-parte on 22.12.2006 for not marking her presence before the Court despite service of summon issued by the Civil Court. The summon has been filed alongwith the appeal as Annexure A/6 at page 46 which was issued for appearance of the appellant/defendant on 22.12.2006 before the civil court. The over leaf of the said summon endorses statement of the process server to the effect that the service has been effected to the appellant/defendant on 20.12.2006 with her signatures.

4. Learned senior counsel for the appellant/defendant submitted that the said service as shown to be effected on appellant/defendant is not in accordance with law as the signatures over the summon is not of the appellant/defendant and the same has been denied before the court below. It is further submitted that the process server namely Dol Bahadur Thapa (NAW-1) has been examined before the court below whose statement is at page 68 of the appeal. Dol Bahadur Thapa in his cross-examination has stated that the signature over the summon said to be of appellant/defendant has not been signed in front of him. It has further been stated that a boy had come out of the house and he had taken the summon inside and got it signed and gave it to him. It has also been submitted that the boy who had received the summon, the process server could not give his name. It has further been submitted that such service of notice is not in accordance with the provisions of CPC as well as the Madhya Pradesh Civil Courts Rules, (for brevity “the Rules”).

5. Learned senior counsel has invited attention of this Court towards Rule 9 of Order 5 of CPC wherein it is provided that service of summon is to be effected on a person against whom it is issued in a manner prescribed in sub-Rule (3) of Rule 9 of Order 5 of CPC. It has further been submitted that as per Rule 12 CPC the person who has received the summon was not an agent and nowhere in the matter before the court below any fact or evidence has been led that person receiving the summon in any manner was connected to the person against whom the summons was issued. It has also been submitted that day to day functions of the Civil Court in respect of procedure is based on the Civil Court Rules which also provides for service on the party in the manner prescribed therein.

6. Emphasis has been laid on Rule 51 and 53 of the Rules to state that the service is to be effected on a person against whom it has been issued, whenever it is practicable and Court ought not to proceed ex-parte upon anything short of personal service, save when substituted service has been ordered or effec