P.K.LOHRA, J. - (1.) APPELLANT defendant by the instant appeal has called in question the impugned order dated 6th of February 2012 passed by the learned District Judge, Rajsamand (for short, 'learned trial Court'), whereby the learned trial Court has rejected his application under Order 9 Rule 13 CPC.
(2.) THE learned trial Court while dismissing the application of the appellant for setting aside decree dated 2nd of April 2009, has observed in the impugned order that it is grossly belated and there is no plausible explanation for inordinate delay of two years. Besides this, on merits the learned Court below has found that the grounds set out in the application are not convincing and no sufficient cause is forthcoming due to which the appellant was prevented from his appearance before the Court. Assailing the impugned order, learned counsel for the appellant Mr. Deelip Kawadia, has urged that the summons of the case issued by the Court below were never offered to the appellant, and therefore, the report of the process server, that the appellant has declined to accept the summons, is baseless and false, and as such, the learned Court below ought to have examined this aspect while considering the application for setting aside the ex parte decree. Mr. Kawadia, learned counsel for the appellant, has strenuously urged that when the appellant has specifically pleaded a ground for setting aside ex parte decree, that he had no knowledge about the pendency of the suit and summons were not duly served on him, it was bounden duty of the learned Court below to make necessary enquiry as envisaged under Rule 19 of Order 5 CPC for ascertaining that Rule 17 of the Order 5 CPC has been adhered by the process server in letter and spirit. The learned counsel for the appellant would urge that from a bare perusal of the impugned order, it is crystal clear that the learned Court below has not made any endeavor to make an enquiry and to examine the process server for unearthing the truth, therefore, the impugned order cannot be sustained. In support of his contentions, Mr. Kawadia has placed reliance on the verdict of this Court in case of Chuki Devi (Smt.) & Ors. Vs. Laxminarayan [2011 (1) RLW 952]. In this verdict, while examining the vital issue relating to service of summons, the Court has made following observations in Para 7 to 11: 7. In order to establish whether the summons were properly sent or not, naturally the star witness would be the process server himself. Even if it is admitted that the appellants did not press their application for summoning the process server as a witness, it does not mean that the Court should sit as a mute witness. In catena of cases, the Hon'ble Supreme Court has observed that judges do not sit like silent spectator watching the trial. In fact, they are legally bound to play a pro active role. Since it was the duty of the learned Judge to decipher and to adjudge whether the summons were properly served or not, he was, in fact, duty bound to summon the process server himself. Of course, he could have invoked his power and could have examined the process server as a Court witness. Even if there is a statement of process server available on record, but the credibility of the witness can be decided only once a witness is subjected to cross examination. Therefore, the learned Judge was duty bound to call the process server as a Court witness and to permit the appellants to subject him to a proper cross examination. Unfortunately, the learned Judge has failed to exercise a jurisdiction which was clearly vested in him. With this failure, he has caused injustice to the appellants.
(3.) A bare perusal of the testimonies of Amar Singh and Ghanshyam clearly reveal that Amar Singh, in his cross examination, has also admitted that he was not present when the process server was trying to deliver the summons to the appellant No. 1. Therefore, his testimony, as admitted in cross examination in chief, looses all its significance. Moreover, Ghanshyam claims in the cross examination that Rajendra Singh was present. Since this statement is contradictory to the report of the process server, even this witness cannot be relied upon. In this view of the matter, the testimonies of both these witnesses do not come to rescue of the respondent. 9. In the case of Shyam Lal and Ors. (supra), this Court has clearly held as under: 10. Order 5 Rule 10 prescribes the mode of service which is to be made by delivering or tendering a copy thereof signed by the Judge or such officer to the defendant. Rule 12 prescribes that as far as possible service shall be made on defendant in person unless he is an agent empowered to accept service. Rule 15 provides that in case the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he had no agent empowered to accept the service of the summons on his behalf, in such situation the service may be made on any adult member of the family who is residing with him. Rule 17 of Order V prescribes that where the defendant or his agent or such other person refuses to sign the acknowledgment or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, or there is no agent empowered to accept service of the summons on his behalf nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part. Rule 19 provides that where summons are returned under Rule 17, and if returned under the rule had not been verified by the affidavit of the serving officer and may, if it has been so verified, examine, the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit. Rule 19 A provides simultaneous issue of summons for service by post in addition to personal service and Rule 20 provides for substituted service. ;