K.N.Singh, J. - (1.) THIS revision is directed against the order of the First Additional District Judge, Allahabad dismissing applicant' s revision filed under Section 25 of the Small Cause Courts Act. The revision came up for hearing before a learned Single Judge of this Court. He was of the opinion that since the question involved in the case was important one, which very frequently arises in the courts below, an authoritative decision was necessary to be given by a larger Bench. At the instance of the reference made by the learned Single Judge, the revision has come up before us for hearing.
(2.) BRIEFLY, the facts giving rise to this revision are that the applicant was a tenant of a house situated in Allahabad of which the opposite party is the landlord. The opposite party filed a suit against the applicant for recovery of arrears of rent and his ejectment before the Court of Judge, Small Causes at Allahabad. On the date of hearing fixed by the court, the applicant-defendant was absent; the Court held service of summons sufficient and decreed the suit of the plaintiff ex parte on 28-9-1972. The applicant filed a restoration application under O. IX R. 13 of the Civil P. C. on the ground that there was no due service of the summons and he had no knowledge of the date of hearing. The trial court dismissed the application holding that the petitioner had knowledge of the date of hearing and he had no sufficient cause for his absence on the date of hearing. The defendant-applicant thereafter preferred revision against the order of the trial court before the District Judge dismissing the restoration application. The revision was dismissed and the findings of the trial court were affirmed. The Additional District Judge held that the applicant had refused to accept the summons and he had full knowledge of the date of hearing fixed in the suit and he had no valid cause or reason for his absence. Aggrieved, the defendant-applicant has filed this revision under S. 115 of the Civil P. C. for setting aside the ex parte decree and orders of the courts below. O. IX R. 13 of the Civil P. C. confers jurisdiction on the court to set aside an ex parte decree if it is satisfied that the summons was not duly served on the defendant or that he was prevented by any sufficient cause from appearing when the suit was called for hearing. In the instant case, the applicant in his restoration application and the affidavit filed in support thereof had asserted that the summons was not duly served on him and he had no knowledge of the date of hearing and, as such, there was sufficient cause for his absence when the suit was called for hearing. The summonses were issued by the trial court to the applicant on his local address as well as at the place of his posting at Mathura as the plaintiff had made a prayer that the summons be served on the defendant at both the addresses. 29th Sept. 1972, was the date fixed for defendant' s appearance and hearing of the suit. On 17th Aug. 1972, the process server delivered the summons to the applicant personally in the civil court compound at Allahabad in the presence of two clerks of advocates and the plaintiff' s son. The applicant after reading the summons refused to acknowledge it, instead, he returned the same to the process server saying that the summons should be sent to him at his office address at Mathura. The process server made a report to the trial court that the defendant-applicant had refused to accept the summons and he mentioned the names of the witnesses who were present. The trial court held the service of summons sufficient and passed orders for proceeding ex parte. On Sept. 30, 1972, the trial court passed the ex parte decree against the defendant-applicant. The defendant-applicant' s plea raised in his application for setting aside the ex parte decree that the summons was not served on him and that he had no knowledge of the suit or the date fixed therein was rejected by the courts below. The courts below placed reliance on the report of the process server as well as on the affidavit of persons present at the time of refusal and also the plaintiff' s son an advocate of the Court, and recorded findings that the defendant-applicant was absent deliberately despite knowledge of the date of hearing in the suit. The findings of the courts below are findings of fact which in our opinion, do not suffer from any patent error of law and it is not open to this Court to reconsider the evidence or record fresh findings in the present proceedings.
(3.) SHRI K. C. Saksena, learned counsel for the applicant, contended that even on the findings recorded by the courts below there was no due service of summons on the defendant-applicant as the process server failed to comply with the procedure as laid down under O. V, R. 17 of the Civil P. C. inasmuch as on the defendant' s refusal to accept the summons the process server did not affix a copy of the summons at the outer door or at some other conspicuous place of the defendant' s house in which the defendant may have been ordinarily residing or carrying on his business. We have given our anxious consideration to this question but we find no merit in it. The Civil P. C. provides various modes for service of summons on the defendant. Firstly, service may be effected by tendering or delivering summons to the defendant personally by an officer of the Court and if it is not practicable to serve the defendant personally then summons is to be personally served on the agent authorised to accept the same on behalf of the defendant (O. V. R. 10). Secondly, service may be made on an adult male member of the house of the defendant who may be residing with him if the defendant cannot be found or has no authorised agent who could accept service. The third mode of service is prescribed by R. 17 which lays down that where the defendant or his agent or other person of his family refuses to sign the acknowledgement or where the serving officer cannot find the defendant or an agent empowered to accept service of summons or any other person on whom service can be made, the serving officer is to affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant may ordinarily be residing or carrying on business. The serving officer is required to return the original to the court with a report stating that he had affixed the copy of the summons on the door along with the name and address of the persons in whose presence the copy may have been affixed. Rule 20 contains provisions for substituted service by affixing a copy on some conspicuous place in the court house or upon some conspicuous part of the house in which the defendant is known to have last resided or carried on his business. Rule 20-A provides for service of summons on the defendant by registered post in addition to or in lieu of other modes of service of summons. It is true that the process server did not make any effort to affix the copy of the summons at the outer door of the defendant' s place of residence on his refusal to accept the same. In our opinion, this defect was not substantial enough to vitiate the service of summons. The purpose of issuing summons is to give intimation to the defendant of the suit, the court, and the date fixed for his appearance and in order to achieve that purpose the legislature has laid down detailed procedure for service of summons on the defendant. Where ex parte decree is passed in the defendant' s absence, he is entitled to get the decree set aside under O. 9 R. 13 if he satisfies the court that the summons was not duly served on him and he had sufficient cause for his absence. But in view of the proviso added by the Allahabad High Court to O. 9 R. 13 an ex parte decree cannot be set aside on the ground of any irregularity in the service of summons, if the court is satisfied that the defendant had knowledge, but for his wilful conduct he had sufficient time to appear and answer the plaintiff' s claim. The proviso added by this Court has now been ingrafted in Rule 13 itself by Parliament by the Amending Act No. 104 of 1976. Admittedly, at the relevant period when the question arose before the courts below the proviso as added by this Court was in force. Both the courts held that the process server' s failure to affix the summons at the outer door of the defendant-applicant' s place of residence was a mere irregularity and since the defendant-applicant had knowledge of the date of hearing, he had no sufficient cause for his absence. We are of the opinion that the courts below have rightly held that the defect, if any, in the service of summons was a mere irregularity and since the defendant-applicant had knowledge of the date of hearing he had no sufficient cause for his absence and as such the ex parte decree could not be set aside.;