Heard finally with the consent of the parties.

2]

This civil revision has been filed by the petitioner under

Section 115 of Code of Civil Procedure, 1908 against the order

dated 08.01.2013, 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 dated 07.09.2012 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 dated

08.01.2013, the District Appellate Court has allowed the appeal and

remanded the matter back to the Trial Court by restoring the civil

suit.

3

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

05.05.2011, and put in execution, and again, when the notices were

served on the defendant Nos.3 and 4, they came to know about ex-

parte 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 dated 07.09.2012, 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-

4

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

5