SHARMA, J. - (1.) THIS appeal arises from the order dated February 26, 1996, passed by the Additional District Judge, Kishangarh Bas, District Alwar, whereby the application moved by the defendant appellant under Order 9 Rule 13 read with section 151 CPC has been dismissed.
(2.) FEW facts deserve recall here. In a suit instituted by the plaintiff respon-dent in the trial court summons was issued in the name of defendant appellant and it was returned with the endorsement of the process server that the summons was affixed as the defendant appellant refused to accept the service. Certified copy of the summons alongwith the report of the process server has been placed before me. Endorsement of the process server on the back of the summons reads as under : ***** A look at the report of the process server demonstrates that although two witnesses have signed over the summons but it has not been stated as to who identified the house of the defendant appellant. More over close scrutiny of the report reveals that the process server had gone to the house of the defendant for the first time and on finding that the defendant had gone out, he affixed the summons on outer door of his house. Order 5 Rule 17 CPC reads as under : ``where the defendant or his agent or such other person, as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant who is absent from his residence at the time when service is sought to be effected on him and his residence and there is no likeli- hood of his being found at the residence within a reasonable time and 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 of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he had so affixed the copy, the circumstances under which he did so and the name and address of the person (if any) by whom the house as identified and in whose presence the copy was affixed. '' In the instant case I am of the considered view that the process server did not care to use due and reasonable diligence in finding the defendants, without making efforts to find out as to when the defendants would be available next time and trying the summons on them, the process server affixed the summons on outerdoor. There is one more infirmity in the report of process server that he did not mention that as to by whom the house of the defendants was identified. These infirmities can not be merely termed as irregularities. I am of the considered view that the provisions of Order 5 Rule 17 CPC have not been complied with by the process server in the instant case. Second proviso of Order 9 Rule 13 does not applyin the present case. In State of U. P. vs. Ram Prasad (1), the Division Bench of Allahabad High Court has observed thus : ``the second proviso to Order 9 Rule 13 does not apply where there is no service of summons at all, it covers only irregularity in service. A person claiming benefit of the proviso must prove that all necessary conditions have been fulfilled. ''
(3.) IN Smt. Ram Pati Devi & Anr. vs. Mst. Chandrika Devi (2), the Patna High Court (Hon'ble L. M. Sharma J. as he then was) had held that second proviso appended to Order 9 Rule 13 CPC, applied only to those cases where proviso appended to Order 9 Rule 13 CPC, applied only to those cases where irregularity inservice of summons is found but when there is no service of the summons at all, the provision is not applicable and the person who claimed the benefit of the provision must prove all necessary conditions. Therefore the impugned order passed is unsustainable and deserves to be quashed. I do not agree with the contentions raised by Shri G. N. Sharma, learnedcounsel for the respondent that presumption of service should be drawn and it may be inferred that the persons who have signed over the summons had identified the house. According to Order 5 Rule 17 it was incumbent upon the process server to explain the circumstances under which the service of summons was effected and it was necessary for him to mention the names and addresses of the persons if any by whom the house was identified and in whose presence the copy of the summons was affixed. ;