C.M. Lodha, C.J.
1. This revision petition by the plaintiff petitioners is directed against the order dated February 24, 1979, by the learned District Judge, Udaipur, whereby the learned District Judge set aside the order by, the Civil Judge, Udaipur, dated December 19, 1978, dismissing the defendant's application under Order IX Rule 13, CPC for setting aside the ex parte decree dated March 26, 1978, against him.
2. The relevant facts giving rise to the revision petition may be stated within a narrow compass. The plaintiffs filed a suit for ejectment from a plot of land against the defecdent-non-petitioner in the court of Civil judge, Udaipur, on November 30, 1977. The first date fixed in the case was February 28, 1978, but since the summons issued to the defendant was returned on that date, the case was adjourned to April 24, 1978. On March 8, 1978, the plaintiffs, by way of abundant caution, made an application that in addition to the issue of summons in the Ordinary course, summons may be directed to be issued and served by registered post at both the addresses of the defendant, namely, Udaipur and Salumber, where he was likely to be found. The postal acknowledgment receipt of the summons sent by registered post at Salumber address is No. 9365 and that sent at Udaipur address is No. 9866, Both are dated March 19, 1978. The registered letter No. 9865 sent at Salumber address was returned with an endorsement dated March 27, 1978 made by the postal employee that the addressee had refused to accept the registered letter. The registered letter No. 9866 sent at Udaipur address was, however, taken delivery of by one Narulal, who signed the acknowledgment receipt for the defendant Chiman Lal. The case was accordingly taken up on April 24, 1978. The defendant was absent and the court recorded an order to the affect that service had been duly effected, but while doing so, a mistake crept in, in as much as it was the letter issued at Salumber address which had been refused, but on account of postal acknowledgment receipts being wrongly attached, it was mentioned that the summons received at Udaipur address had been refused. In any case, the court held that the service was complete. Consequently, it directed ex-parte proceedings to be taken against the defendant and adjourned the case to May 26, 1978 for the plaintiffs' evidence. The defendant was absent on May 26, 1978, also. The plaintiffs examined their witnesses and after hearing the plaintiffs' counsel the court passed an ex-parte decree the same day.
3. On June 26, 1978, the defendant presented an application under Order IX Rule 13, CPC for setting aside the ex-parte decree passed against him on April 24, 1978, on the ground that he had suddenly fallen ill on May 23, 1978, and did not recover till May 28, 1978. Thus, his case was that he was unable to attend the case on May 24, 1978. He went on to state, that since the court was closed for summer vacation thereafter, he was making the application on June 26, 1978. The plaintiffs opposed the defendant's application for setting aside the ex parte decree on the ground that the allegation made by the defendant regarding his illness from May 23, 1978 to May 28, 1978 is false and, in any case, no reason for the absence had been shown for April 24, 1978, the date of hearing, on which the ex-parte order was passed. The learned Civil Judge, Udaipur, dismissed the defendant's application on the ground that the defendant had failed to show sufficient cause for his absence on April 24, 1978, and further that the medical certificate filed by the defendant for his illness from May 23, 1978 to May 28, 1978 could not be relied upon. He also held that the illness of the defendant between May 23, 1978 and May 28, 1978 was, at any rate, immaterial.
4. Dissatisfied with the order of the learned Civil Judge, Udaipur, the defendant filed an appeal in the court of the District Judge, who. however, allowed the appeal and set aside the exparte decree against the defendant on the ground that summons had not been duly served upon him.
5. The learned District Judge held that the trial court had, while directing exparte proceedings against the defendant, observed that summons sent to the defendant at Udaipur address had been refused where as the postal envelope sent at Salumber address bore an endorsement of refusal. This was the sole basis on which the learned District Judge set aside the order of the learned Civil Judge. In this connection, it may be pointed out that the observation of the learned Civil Judge that the summons sent at Udaipur address had been refused, was a mere accidental slip. I have perused the original postal envelope which was sent at Salumber address and there is a clear endorsement thereon by the post man that the postal envelope was offered to the defendant but he refused to take delivery of the same. In this view of the matter, mere accidental slip by the Civil Judge while recording the order directing ex parte proceedings, is of no consequence. It is also remarkable that there is not a word in the application made by the defendant to the effect that the summons had not been duly served upon him. The Application is based on the sole ground of the defendant's alleged illness from May 23, 1978 to May 28, 1978. This ground has obviously fallen. In my opinion, it was not open to the learned District Judge to make cut a new case not pleaded and relied upon by the defendant. This is particularly important because if the defendant had taken this ground then the plaintiffs could have met it. In this connection, attention may also be drawn to the second proviso to Order 9 Rule 13 CPC. added by the Code of Civil Procedure (Amendment) Act, 1976, which reads as under,-
Provided further 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 satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
In this view of the matter, the learned District Judge was not justified in making out a cause not pleaded by the defendant himself for setting aside the ex parte decree. I may add that Order 5 Rule 19A [vide Sub-rule (2)], inter alia, provides that when the acknowledgment purported to be signed by the defendant or his agent is received by the court, or the postal article containing the summons is received back by the court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent bad refused to take delivery of the postal letter containing the summons when tendered to him, the court issuing summons shall declare that the summons had been duly served on the defendant. Thus, according to the aforesaid provision, there is no escape from the conclusion that the trial court was justified in declaring on April 24, 1978, that the Summons had been duly served on the defendant as there was an endorsement made by the postal employee to the effect that the defendant had refused to take delivery of the postal letter containing the summons.
6. Looked at from any angle, the learned District Judge clearly fell into an error in setting aside the order of the trial court. He had no jurisdiction to set aside the ex parte decree as no ground what so ever had been made out for doing so.
7. The result is that I allow this revision petition, set aside the order by the learned District Judge, Udaipur, and restore that of the Civil Judge, Udaipur, dated December 19, 1978. There will be no order as to costs.
8. Shri L.R. Mehta, learned Counsel for the defendant-non-petitioner, however, submits that some time may be granted to the defendant to hand over vacant possession of the plot of land in question to the plaintiffs in compliance of the decree. In the interests of justice; I grant to the defendant six months time from today, within which the decree holder shall not execute the decree for possession of the plot. He may, however, execute the rest of the decree.