Legal procedures for serving notices must be followed, and refusal of service cannot negate the validity of service when appropriately executed.

1. By this revision, the applicants have challenged the legality and propriety of the order dated 2-2-2002 passed by the Second Additional District Judge, Baloda Bazar in Misc. Civil Appeal No. 29/98, affirming the order dated 4-5-93 passed by the Civil Judge Class - II, Baloda Bazar in Misc. Civil Suit No. 13/93 whereby the learned Civil Judge, Class - II dismissed the application under O.9, R.13 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') filed by the applicants for setting aside ex parte decree passed against them.

2. The order is challenged on the ground that the finding of the Courts below are perverse and caused substantial injustice to the applicants.

3. Brief facts of the case are that Civil Suit No. 61A / 90 was filed by deceased Ramnath (father of non - applicant No. 1 and husband of non - applicant No. 2) against Hari and Jaita which was decided ex - parte on 18-12-90. An application for setting aside ex - parte judgment and decree was filed by Hariram on the ground that summons of the suit have not been served upon him and only on the basis of endorsement of the postman relating to refusal of registered notice, the Court has proceeded ex parte and ex parte decree was passed. After affording an opportunity of hearing to the parties, learned Civil Judge Class - II has dismissed an application for setting aside ex - parte decree vide order dated 4-5-93. Being aggrieved and dissatisfied with the said order, an appeal was preferred and the same was also dismissed by the order impugned.

4. I have heard learned counsel appearing for the parties.

5. Learned counsel appearing for the applicants argued that summons have not been served upon the applicants and only on the ground of endorsement of, refusal made by postman, the Court has proceeded ex parte against Hariram and passed ex parte decree. The Court below has not considered the fact that summons have not been served upon Hariram and Hariram was not having any knowledge of pendency of the suit. Learned counsel further argued that summons through usual mode have not been issued against Hariram, therefore, even any refusal of summons notice through registered post is not sufficient for proceeding ex parte against the applicants / defendants. Learned counsel also argued that order dated 27-6-90 passed in Civil No. 61 - A / 90 shows that no summons through usual mode have been issued and only the Court has directed to issue summons through registered post and the same is illegal. Even the Court below has not examined the postman who has made endorsement of refusal.

6. I have perused the order impugned and records of the Courts below. O.5, R.20 of the Code is provided under O.5 in accordance with R.1 read with R.9 of O.5 of the Code. Service should be affected on the person by delivering the copy of the same and if the person refuses to accept the service, then service may be affected under the provisions O.5, R.17 of the Code. O.5, R.19 - A of the Code provides service by post which was amended in the year 1977 and was deleted by Act of 46 of 1999 with effect from 1-7-2002. Provisions were available in the Code from 1977 to year 2002 which reads as follows : -
"19A. Simultaneous issue of summons for service by post in addition to personal service. - (1) The Court shall, in addition to and simultaneously with, the issue of summons for service in the manner provided in R.9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on