1.This petition raises the question whether the learned Senior Sub-Judge was Justified in Betting aside an ex parte decree.
2. One Rishi Kesh who is the 'owner of a certain house situate in Delhi brought a suit for the ejectment of his tenant Kidar Nath. A summons was issued to the tenant to appear in Court on the 25th August, 1954. The process-server delivered a copy of the summons and a copy of the plaint to the tenant but the latter declined to sign the qther copy of the summons in token of acceptance of service. The process-server accordingly submitted a report on the 12th August, 1954 that he had effected service of the process On the tenant but that the latter had declined to sign the second copy of the summons.
The Court, was satisfied in regard to the correctness of the report and granted an ex parte decree in favour of the landlord on the 25th August 1954. On the following day the tenant put in an application under Order 9, Rule 13 of the Code of Civil Procedure for the setting aside of the ex parte decree in which he stated that he had not been served in accordance with the provisions of law as a copy of the summons was not affixed to the house in accordance with the provisions of Order 5, Rule 17 of the Code of Civil Procedure. The trial Court declined to set aside the ex parte decree.
The Senior Sub-Judge however, came to a contrary conclusion. He held that although it was established beyond doubt that the defendant had declined to accept service of notice it was obligatory on the process-server to affix a copy of the process to the outer door of the house of the defendant as required by the provisions of Order 5, Rule 17 of the Code or Civil Procedure. As this provision of law had not been complied with the learned Senior sub Judge allowed the appeal and set aside the ex-parte decree. The landlord is dissatisfied with the order and has come to this court in revision.
3. Rule 13 Order 9 of the Code of Civil Procedure Which provides for the setting aside of ex-parte decrees requires the defendant to satisfy at least one of the following conditions before the decree can be set aside namely (1) that the summons was not duly served, or (2) that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. The defendant in the present case based his claim only on the first of the two grounds, namely that the summons was not duly served and it is with that ground only that I am concerned in the present case.
4. Rule 10 of Order 5 of the Code of Civil Procedure declares that service of summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court. R. W. 1 Mohammad Aiyub process-server who was charged with the duty of effecting service of the process on the tenant and who has been produced as one of me tenant's own witnesses has Stated on oath that he delivered a copy of the summons as well as a copy of the plaint to the defendant. His evidence In this behalf has been corroborated by the testimony, of the landlord himself.
It is true that according to the report submitted by the process-server the refusal to accept the process was made not only in the presence of the , landlord but also in the presence of Punnu Mal and Ratan Pal and that these two witnesses have not been produced in Court, but the fact remains that both the Courts below have accepted the testimony of Mohammad Aiyub process-server who, as I have stated already, was produced by the defendant himself and who stated quite clearly that he effected service of the process on the defendant by tendering copy of the summons to him.
As the provisions of law have been complied with in substance and effect, I am unable to hold that summons was not duly served. It has been held repeatedly that when a defendant refuses to accept service 'of process it is not obligatory on the Court to comply with the provisions of Rule 17 of Order 5 of the Code of Civil Procedure. Teja Singh V. Jaswant Singh', AIR 1935 Lah 171 (A), 'Vishwa-nath v. Vaijnath' AIR 1925 Nag 356 (B), Dund-bahadur Singh v. Durga Prasad Singh' AIR 1953 Pat 346 (C), and 'Memon Aba Isa Haji Adhreman Dharar v. Memon Matnad Haji Suleman Chama-dia' AIR 1955 Sau 28 (D). .
5. For these reasons I would allow the petition set aside the order of the Senior Sub-Judge and restore that of the trial Court. There will be no order as to costs.