JUDGMENT 1. - This is an appeal against the order passed by the learned District Judge, Jodhpur on October 6, 1982 dismissing an application for setting aside the ex parte decree passed by him on July 18, 1981. 2. It is undisputed that a marriage between Banshidhar respondent and Chandrakala appellant was solemnised on June 17, 1979 according to Hindu rites. On October 7, 1980 a petition for divorce was filed by Banshidhar in the Court of the learned District Judge, Jodhpur seeking a divorce on the ground contained in Section 13(1) of the Hindu Marriage Act, 1955, namely, that after the solemnisation of the marriage she had voluntary sexual intercourse with a person other than her husband. Notices in respect of this petition were issued to the appellant Chandrakala for November 27, 1980. As the notices were received unnerved, the learned District Judge passed an order on November 28, 1980 directing that notice be issued for her afresh for January 7, 1981 and another set of notices be sent by registered post to her. On January 7, 1981 the Presiding Officer was on leave. Learned counsel for the respondent desired to file process fee for issuance of notice and the case was adjourned to January 12, 1981. It was also mentioned in the order sheet on that day that the notice sent by registered post was returned with the report `refused'. On January 12, 1981 the learned District Judge held that as the notices sent by registered post to the Ratangarh address of the appellant was returned with the report `refused' the service was sufficient and so ex parte proceedings be taken against the appellant. After recording ex-parte evidence, the learned District Judge passed an ex-parte decree for divorce on July 18, 1981. 3. An application for setting aside the ex-parte decree was filed by the appellant Chandrakala on November 10, 1981 alleging that the summons were not served upon her and that question of refusal of summons sent at her Ratangarh address did not arise as she was at that time at Delhi with her father's sister. The appellant alleged that she came to know about the ex parte decree on October 18, 1981 when she came to Jodhpur with her father and the record of the case was inspected by her counsel on October 19, 1981. The appellant alleged that she came to know about the ex parte decree on October 18, 1981 when she came to Jodhpur with her father and the record of the case was inspected by her counsel on October 19, 1981. An affidavit was filed by the appellant as well as by her father that she remained at Delhi with Shri Bhairav Narain Purohit. Advocate from November 18, 1980 to July 1, 1981. It may be mentioned here that in her affidavit filed along with the application for setting aside the ex parte decree October 18, 1982 was mentioned instead of November 18, 1980 as the date of her going to Delhi. The error in the date was subsequently corrected when the appellant filed another affidavit on May 27, 1981., by way of rebuttal. 4. The case of the respondent in his reply was that the summons were duly served and the appellant know fully well about the entire proceedings from the vary beginning. He also produced some letters which are alleged to have been, written by the appellant and her father, in order to contradict the appellant's version that she was at Delhi from November 18, 1980 to July 1, 1981. The affidavit of Banshidhar dated May 1, 1982 was filed in support of his reply. As mentioned above, the appellant filed another affidavit by way of rejoinder on May 27, 1982, refusing the allegations made by Banshidhar in his reply. 5. An application was filed on behalf of Chandrakala appellant on August 13, 1982 before the learned District Judge that as the parties have filed their affidavits and counter affidavits, issues should be framed and evidence should be recorded and the appellant Chandrakala may be allowed an opportunity to lead her evidence before proceedings to decide the application for setting aside ex parte decree. The aforesaid application for recording the evidence was not decided by the learned District Judge until October 6, 1982 when he not only rejected the application for taking evidence but by the same order also proceeded to dismiss the application for setting aside the ex parte decree. 6. The first contention of the learned counsel for the appellant in this appeal is that the trial court ought to have decided the application dated August 13, 1982 about recording evidence in the first instance. 6. The first contention of the learned counsel for the appellant in this appeal is that the trial court ought to have decided the application dated August 13, 1982 about recording evidence in the first instance. Learned counsel submitted that the order passed by the learned District Judge on October 6, 1982 presents a rather confused picture inasmuch as he appears to have proceeded in the first instance to decide the application regarding recording of evidence but then he proceeded to dismiss both the applications together by the same order including the main application for setting aside the ex parte decree. The contention of the learned counsel is that the learned District Judge should have afforded the appellant an opportunity to lead oral or affidavit evidence or at least to cross examine the respondent in respect of the affidavit filed by him. It was further contended by the learned counsel that there were uncontroverted affidavits filed by the appellant Chandrakala on the question of service and there was no reason for the learned District Judge to have discarded the affidavits filed by the appellant as there was no evidence by way of rebuttal and the postman who is supposed to have made an endorsement of refusal was not examined. Thus, the finding recorded by the learned District Judge that the appellant was properly served with notice was not in accordance with law. On the other hand, learned counsel for the respondent argued that the service affected upon the appellant was sufficient according to law, as the notice sent to her by registered post was received back with the endorsement of refusal. It was argued that the service should be deemed to be sufficient in view of the provisions of order 9 Rule 13 C.P.C. and further that an adverse inference should he drawn on account of the non production of an affidavit of Shri Bhairav Narain Purohit, Advocate of Delhi, with whom the appellant is alleged to have resided at the time when the postman went to her Ratangarh address to serve the notice upon her. It was also contended that the letters of the appellant and her father produced by the respondent go to show that she was presented at Ratangarh at the relevant time. It was also contended that the letters of the appellant and her father produced by the respondent go to show that she was presented at Ratangarh at the relevant time. Learned counsel for the respondent further argued that the application for setting aside the ex parte decree was barred by limitation, as such an application ought to have been filed within 30 days from the date of knowledge and that she had full knowledge as relations of the appellant at Jodhpur were watching the proceedings in the divorce petition. Thus, knowledge of the proceedings should be presumed on the basis of the letters of the appellant and the information of her relatives. 7. An argument was also advanced at one stage by Mr. Kala, learned counsel for the respondent that Order 9 Rule 13 C.P.C. is not applicable to the proceedings under the Hindu Marriage Act and reference was made to a decision of this Court in Smt. Priti Pariha v. Kailash Singh, 1977 W.L.N. 357 . In that case, it was held that an appeal against an order passed under any provision of the Act other than Sections 25 and 26 thereof, in any pending proceedings, was barred by necessary intendment although there was no express prohibition contained therein. That case related to an appeal filed against an order for interim maintenance passed under Section 24, and it has no relevance to the question as to whether Order 9 Rule 13 C.P C. applies to the proceedings under the Hindu Marriage Act. Section 21 of the Act specifically makes the provisions of the Code of Civil Procedure applicable to all proceedings under the Act subject to the provisions contained in the Act or the Rules made by the High Court in that behalf. Learned counsel also drew my attention to the provisions of sub-section (2) of section 4, which gives over riding effect to the Act over any other law in force so far as it is inconsistence with any of the provisions contained therein. The procedure to be followed in the proceedings initiated under Section 13 of the Act is to be regulated by the provisions of the Code of Civil Procedure, as provided in Section 21 of the Act, subject to the condition that the same was inconsistent with the provisions contained in the Act. The procedure to be followed in the proceedings initiated under Section 13 of the Act is to be regulated by the provisions of the Code of Civil Procedure, as provided in Section 21 of the Act, subject to the condition that the same was inconsistent with the provisions contained in the Act. If there is any special provision contained in the Act, like the provision regarding appeals contained in Section 28, then the provisions of the Code of Civil Procedure would not apply in such matters. But where the Hindu Marriage Act did not contain any specific provision then the procedure to be followed in the proceedings under the Act ought to be regulated in accordance with the provisions of the Code of Civil Procedure. If an ex parte decree is passed in say proceeding under the Act, these is no reason why order 9 Rule 13 C.P.C. would not be applicable and an application for setting aside the ex parte decree could not be filed by the aggrieved party. Thus, I find no reason for accepting the preliminary objection raised by the learned counsel for the respondent that the application under Order 9 Rule 13 C.P.C. for setting aside ex parte decree should not have been entertained by the trial court. 8. Learned District judge has laid considerable stress upon the fact that Shri Bhairav Narain was an Advocate and if his affidavit would have been filed, it would have satisfied the court prima facie about the fact that the appellant was residing with him at the time when service of notices is alleged to have been affected. Even in the penultimate paragraph of his order, the learned District Judge observed that it was incumbent upon the appellant to produce sufficient material on record by affidavits which could prima facie satisfy the court that until the statement of the postman was recorded, the court would not be in a position to hold that the refusal recorded by the postman should be believed or not and that in the absence of the affidavit of Shri Bhairav Narain, Advocate, it could not be accepted prima facie that the appellant was residing with him at Delhi at the relevant time. The affidavit of Shri Bhairav Narain, Advocate would have been produced, it would have been one more piece of evidence in support of the appellant's contention that she was staying at the relevant time at Delhi and was not available at Ratangarh when the postman is alleged to have gone on December 24, 1980 to serve the registered envelope containing the notice upon her. It is surprising to observe that the learned District Judge did not care to consider the affidavit of the appellant's father. Who was also an advocate, which was filed in support of the application for setting aside ex parte decree. He also failed to refer to the affidavit filed by Chandrakala appellant on May 27, 1982 by way of rebuttal. The application for setting aside ex parte decree, submitted under Order 9 Rule 13 C.P.C. can normally be decided on the basis of affidavits, if they are sufficient to arrive at a definite finding on the questions of fact alleged in the application. If the parties are so desire and if the court finds it proper, the court may allow the parties to cross examine the witnesses whose affidavits have been filed. The court may also allow the parties an opportunity to produce evidence in the shape of affidavits or may allow them to lead oral evidence in support of their respective contentions before coming to a definite finding on the question of fact alleged in the application for setting aside the ex parte decree. In the present case, the appellant had made a specific prayer for leading evidence in her application dated August 13, 1982. The learned District Judge should have considered the request of the appellant for leading oral evidence on the questions involved in the application which are two fold, namely about the sufficiency of the service and about the knowledge of the appellant regarding the proceedings for divorce. If the court felt that recording of oral evidence was not necessary in the present case, then it could have allowed the parties an opportunity to produce evidence by way of affidavits. The learned District Judge should have atleast considered the request of the appellant for producing evidence before proceeding to decide the main application under Order 9 Rule 13 Civil Procedure Code. 9. The learned District Judge should have atleast considered the request of the appellant for producing evidence before proceeding to decide the main application under Order 9 Rule 13 Civil Procedure Code. 9. So far as the question of sufficiency of service is concerned, the respondent has no personal knowledge as to who refused to receive the postal article at the time when the postman went to the appellant's house at Ratangarh to serve the registered envelop. containing the summons, as he had not accompanied the postman at that time. The endorsement of refusal, contained on the back of the envelope alleged to have been made by the postman on December 24, 1980, only raises a rebuttal presumption in favour of the regularity of the acts of the postal employee. But in the face of positive statement to the contrary contained in the affidavit of her father and reaffirmed also in the affidavit filed by the appellant by way of rebuttal, it cannot be held that the presumption raised by the endorsement made by the postman has not been sufficiently rebutted. 10. In Maghji Kanji Patel v. Kundanmal Chamanlal Mehtani. A.I.R. 1968 Bom. 387 , it was held that sending a letter by registered post merely raises a rebuttal presumption that the letter was delivered to the addressee, but in case the addressee makes a statement that such a letter was not tendered to him, the presumption stands rebutted. The learned Judge went on to observe as under:- "Where an ex parte decree is passed after the writ of summons has been sent to a defendant by registered post and the cover containing the summons has been returned with the postal endorsement `refused' it is undoubtedly for the defendant to satisfy the court that the letter was not tendered to him. But the defendant can only do so by making a statement on oath. This must usually remain uncontroverted, unless the postman, who tendered the letter to him, is summoned and makes a statement that he tendered the cover containing the summons to the defendant and after cross examination, his evidence is believed. In this case, the plaintiff did not summon the post- man. This must usually remain uncontroverted, unless the postman, who tendered the letter to him, is summoned and makes a statement that he tendered the cover containing the summons to the defendant and after cross examination, his evidence is believed. In this case, the plaintiff did not summon the post- man. The statement on oath of the defendant remained un- controverted and, in my opinion, there was sufficient ground for setting aside the ex parte decree and setting aside the ex parte decree and accordingly, I make an order setting aside the ex parte decree." 11. In Ram August Tewari and others v. Bindeshwari Tewari and others. A.I.R. 1972 Patna 142 it was contended that there was a presumption that a letter once posted reached its destination. Their Lordships observed that such a presumption was no doubt there, but it stood rebutted if the addressee denied having received the letter and then it was not necessary to examine the postal peon to prove that the letter was in fact delivered. Thus, in the absence of the examination of the postal peon, it was observed that it was not possible to hold that service through registered post was affected when the addressee has rebutted the presumption by denying the receipt of the letter. 12. In Pawada Bankateswara Rao v. Chidemana Venkata Ramana, A.I.R 1976 S.C. 869 their Lordships of the Supreme Court referred to the decision of the Bombay High Court in Maghji's case (2) and to a decision of the Calcutta High Court in Nirmalabela Debi v. Provat Kumar Basu, )1948) 52 Cal. W.N. 659 and observed as under : "The two decisions are reconcilable. The Calcutta High Court applied a rebuttal presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed with- out further evidence. The Andhra Pradesh High Court had applied the ratio decidendi of the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It may be that, on a closer examination of evidence on record, the court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admission or conduct." 13. In Gurbachan Singh v. Dharam Samaj Society, A.I.R. 181 All. 208 a learned Judge of the Allahabad High Court observed as under:- "The crucial question which thus arises in the present case now is as to whether in the State of evidence which exists on the record the defendant can be said to have rebutted the presumption which had been raised against him. The defendant in the present case stated on oath that the postman had not served the notice on him. He has not at all been cross-examined on the aforesaid point by plaintiff. The plaintiff's only witness has made a statement that he had not accompanied the postman. The only thing which the plaintiff has been able to point out is that the notice has been sent to the correct address of the defendant. The contention of the plaintiff's counsel that the defendant should have cross-examined the plaintiff on the aforesaid question and should have also produced the postman, in my opinion. is without any force. The plaintiff himself had not accompanied the postman for effecting the service and thus there was no question of cross examining the plaintiff on that question. The postman had made an endorsement of refusal on the notice and the defendant would not call a witness who was going to depose against him. It was for the plaintiff in case he wanted to produce better evidence to produce the postman in evidence in order to believe the version of the defendant that he was not served ......................................................the defendant rebutted the presumption of service of notice against him by examining himself and deposing that the postman never served a notice on him. His testimony was not challenged by the plaintiff in the cross examination. The plaintiff did not produce the postman or any other evidence to show that the defendant was not deposing the truth and that notice had, in fact, been served on him." (emphasis added) 14. His testimony was not challenged by the plaintiff in the cross examination. The plaintiff did not produce the postman or any other evidence to show that the defendant was not deposing the truth and that notice had, in fact, been served on him." (emphasis added) 14. The same view was also taken in B. Padmavathi Rai v. Parvathaimma, A.I.R. 1976 Kar. 97 where a learned Judge of the Karnataka High Court observed that when defendant had examined himself and stated that she had not refused to receive the letter, the prima facie presumption about proof of service has disappeared and it would be then for the plaintiff to prove by cogent evidence the endorsement and by the postman. The decisions cited by Mr. Kala and which the learned District Judge has referred to in his order are cases, in which the postman was examined on the refusal of the addressee, in order to rebut the statement of the addressee that the letter was not delivered to him. In S. P. Srivastava v. Smt. Prem Lata Srivastava, A.I.R. 1980 P. 336 positive evidence was led by the respondent in an application under Order 9 Rule 13 C.P.C. by examining the process server and also a witness who was present at the time of service. The learned Judge observed that evidence in that case was of actual tender and refusal as the witness before whom the notice was tendered was examined in the case. In Prakash Chandra v. Mst. Sunder Bai and Anr., 1979 W.L.N, P. 61 also the postman was examined in the course of proceedings for setting aside the ex parte decree. In Dr. Gannath and others v. Chiman Lal, 1979 W.L.N. 686 the learned Judge observed that there was not a word in the application made by the defendant for setting aside ex parte decree to the effect that the summons had not been duly served upon him. Thus, as the plea of non service of summons was not taken as a ground for setting aside the ex parte decree, the question of rebuttal of presumption arising from the statement of the postman did not arise. In that case, the sole ground for the defendant's absence was his alleged illness, which was not held to be proved. Thus, as the plea of non service of summons was not taken as a ground for setting aside the ex parte decree, the question of rebuttal of presumption arising from the statement of the postman did not arise. In that case, the sole ground for the defendant's absence was his alleged illness, which was not held to be proved. In Food Corporation of India v. Sardarni Baldev Kaur and others, A.I.R. 1981 P & H 113 the courts have concurrently found that the application for setting aside the ex parte decree was not filed by a competent person and the application was barred by limitation. The High Court agreed with the finding on both these questions. The question about non service of the summons was not considered in the aforesaid case and although the decision may be relevant on the question of limitation, but not on the question relating to sufficiency of service. 15. In the case of Chiranjilal Agar Walla and another v. Jai Hind Investments and Industries Pvt. Ltd. and Anr., AIR 1978 Cal 177 a suit was filed to set aside an ex parte decree on the ground of fraud. It was observed that merely non- service of summons was not enough to found a cause of action for setting aside a decree as there ought to be a specific allegation of fraud in order to obtain a decree in such a suit. The decision in the aforesaid case is not relevant to the question convassed before me. 16. Thus, all the decisions cited by the learned counsel for the respondent, Mr. Kala are either not relevant to the question or are cases in which the postman was examined in rebuttal, when the defendant denied the receipt of the letter or notice. I may not be understood as laying down that in each and every case where the defendant merely denies the receipt of a letter properly addressed to him, without giving any reason, the refusal should be accepted as destroying the presumption of due service. There may he cases where the defendant way falsely assert the non receipt of the notice without advancing any reason therefore, and in such cases the court may properly come to the conclusion, after a careful consideration of all the circumstances of the case, that the presumption of due service is not rebutted. There may he cases where the defendant way falsely assert the non receipt of the notice without advancing any reason therefore, and in such cases the court may properly come to the conclusion, after a careful consideration of all the circumstances of the case, that the presumption of due service is not rebutted. However in the present case I have examined the endorsement appearing at the back of the registered envelope containing the notice and it appears that the envelope remained in deposit for some days at the post office at Ratangarh and when the postman went again on December 24, 1980 to deliver the registered envelope containing the notice the father of the appellant noted thereon This endorsement hears his signature and the date as December 24, 1980. Then there is an endorsement by the postman `refused' bearing the same date. Thus, it does not appear from the aforesaid endorsement as to whether the refusal to receive the registered envelope containing the notice was made on that day by the appellant or by her father. If both the endorsements are read together or by her father. If both the endorsements are read together and if both may be relied upon to be correct, then it appears that the appellant might not have been at Ratangarh at the relevant time and her father might have refused to take delivery of the registered envelope containing the notice. The endorsement of refusal made by the postman in the present case does not state that the addressee had refused to accept the postal article. Moreover, the endorsement made by the postman had to be read along with the endorsement made by the appellant's father. Then there is an uncontroverted affidavit filed by the appellant offering as explanation as to why the registered envelope containing the notice was not delivered to her, namely, that she was at Delhi at the relevant time. The affidavit of the appellant is supported by the affidavit of her father and then there is a subsequent affidavit filed by the appellant to the same effect with the rejoinder wherein she stated that she was away from Ratangarh from November 18, 1980 to July 1, 1981. The learned trial court has laid much stress upon the fact that the affidavit of Shri Bhairav Narain Purohit, Advocate was not filed. The learned trial court has laid much stress upon the fact that the affidavit of Shri Bhairav Narain Purohit, Advocate was not filed. If the absence of affidavit of Shri Bhairav Dutt Purohit has given so much importance because he happens to be an Advocate, then there is no reason why equal importance or weight should not a given to the affidavit of the appellant's father Shri Murlidhar, who was also an Advocate and was then alive but who has died subsequently. So far as the letters produced by the respondent are concerned, they relate to the period from October 21, 1980 to October 29, 1980, during which period the appellant way admittedly at Ratangarh. There are only two letters of subsequent periods dated December 2, 1980 and May 26, 1981. After a careful reading of the said letters, I have not been able to find anything in them to show that the appellant was present at Ratangarh at the time when service is alleged to have been effected upon her. 17. The learned District Judge has relied upon those letters to come to the conclusion that the appellant had knowledge of pendency of the proceedings for divorce. I am unable to agree with the conclusion arrived at by the learned District Judge I asked learned counsel for the respondent to point out any specific sentence or passage from any of the letters in question which could create an impression that the appellant or her father was aware of the pendency of the proceedings for divorce. In India it is usual for a girl's father to apologise before her in laws even if there may not be a fault or mistake, and no meaning could be attached much less an inference could be drawn from the fact that the father of the appellant continued to apologies in his all letters and stated that every human being is liable to error. It is beyond comprehension that the learned District Judge could draw an inference that the appellant and his father Murlidhar were not aware of the proceedings for divorce from the mere fact that he repeatedly wrote in his letters that every human being was likely to commit mistake. If they were aware of the pendency of the proceedings, then at that stage father of the appellant would not have requested that the son-in-law should take away the appellant. If they were aware of the pendency of the proceedings, then at that stage father of the appellant would not have requested that the son-in-law should take away the appellant. In fact, the repeated requests made by the father of the appellant in this appeal give rise to an inference that he was not aware of the pendency of the proceedings for divorce. 18. Learned counsel for the respondent argued that under Order 5 Rule 15 C.P.C. service of summons upon the father of the appellant night be a good service. But in the present case the father did not accept the notice. In the absence of the defendant from her residence, service could he effected on any adult member of the family, whether male or female, who is residing with her. Although the father of the appellant nay not be considered to be a member of her family, yet even if a wider meaning could be given to the provisions of O. 5 rule 15 C.P.C. as the appellant was normally living with her father while she was living away form her husband, then the service upon the father might have been good service. But the acceptance of the notice by the father when it was delivered to him was necessary for completing the process of service. If service cannot be effected in accordance with Order 5 rule 15 C.P.C. and the adult member refuses to accept service, then recourse should he taken to the procedure provided in Order 5 rule 17 C.P.C. and there could have been an affixation in the presence of witnesses. Moreover, it may he pointed out that rule 12, 13, 15 and 17 are applicable to service made by the ordinary procedure through an officer of the court, while rule 19-A of O 5 C P.C. provides for simultaneously issue of summons by registered post acknowledgment due, addressed to the defendant. Moreover, it may he pointed out that rule 12, 13, 15 and 17 are applicable to service made by the ordinary procedure through an officer of the court, while rule 19-A of O 5 C P.C. provides for simultaneously issue of summons by registered post acknowledgment due, addressed to the defendant. In the present case, service of summons was not going to be effected according to the ordinary procedure prescribed in rules 9 to 19 of Order 5 C.P.C. though an officer of the court but by registered post under rule 19-A. When service is effected through an Officer of the court, the serving officer has to he examined on oath under rule 19 of order 5 C.P.C. and he has to verify on oath that the summons have been served and then only the court would declare the summons to be have been duly served. When service is sought to be effected through registered post under rule 19-A of O. 5 C.P.C. an acknowledgement purported to be signed by the defendant or his agent can he considered as sufficient to constitute service. Similarly an endorsement-of refusal made by the defendant or his agent to take delivery of the postal article containing the summons may be presumed to constitute the service on the basis of the endorsement purported to have been made by the postal employee. In the present case, the postal employee was not examined to find out as to whether the defendant or her agent had .refused to receive the registered envelope containing the notice. The father of the appellant could not be held to he her agent and such even if there refusal by the father it could not he held that there was a proper service within the meaning of order 5 rule 19-A C.P.C. when the postal man made an endorsement merely stating `refused'. For the aforesaid reasons, I have no hesitation in coming to the conclusion that the summons were not duly served upon the respondent and that even if a presumption of due service may he drawn on the basis of the endorsement purported to have been made by the postal employee, yet the same was sufficiently rebutted by the clear denial contained in the affidavit of the appellant and her father. 19. 19. The next question which naturally arises is as to whether the application for setting aside the ex parte decree was filed within the period of limitation. The appellant has alleged that she received knowledge about the passing of the ex parte decree on October 18, 1981 on reaching Jodhpur with her father, and after the inspection of the record by his counsel on October 19, 1981. The respondent on the other hand alleged that she and her father had knowledge about the proceedings from the very beginning and relied upon the letters which I have already referred to above and also upon the fact that the relatives of the appellant were watching the proceedings. It may be pointed out in this connection that neither the names and particulars of the alleged relatives nor their relationship with the appellant has been disclosed. So far as the question of knowledge is concerned, the appellant desired to lead evidence and an application seeking an opportunity to lead evidence was filed on August 13, 1982. The trial court could have asked the parties to give evidence by means of affidavits or he did not think it proper to allow the parties to examine oral evidence in the case. But the application dated August 13. 1982 ought to have been decided on way or the other before the learned District Judge proceeded to decide the main application for setting aside ex parte decree, so that the appellant would have been in it position to file further affidavits by way of evidence if she desired to do so in case the trial court would have refused her permission to produce oral evidence in the case. I am not impressed by the argument that in each and every case the trial court should examine oral evidence while deciding application or setting aside ex parte decree or orders, but in case it declines to do so, the parties should be free to produce affidavit evidence in the alternative. If oral evidence is not desirable in a given case parties should ordinarily be allowed to produce evidence by way of affidavits in respect of questions of fact raised in miscellaneous applications. If oral evidence is not desirable in a given case parties should ordinarily be allowed to produce evidence by way of affidavits in respect of questions of fact raised in miscellaneous applications. In the present case I am of the opinion that the parties should have been allowed to lead evidence by means of affidavit; or by producing witnesses before the court Learned counsel for both the parties have agreed before me that they are inclined to give evidence by tendering affidavit of such witnesses as they may think proper and necessary, on the question of knowledge. Learned District Judge should, therefore, allow the parties to produce evidence in support of their respective contentions on the question of limitation and as to when the appellant got knowledge about the passing of an ex parte decree and proceeding. The parties of course, would be free to cross examine the persons whose affidavits may be filed, if they so desire.In the result, the appeal is partly allowed. The order passed by the learned District Judge dated October 6, 1982 is set aside and it is held that the notices in respect of the divorce petition under Section 13 were not duly served upon the appellant Chandrakala. But the question of limitation is left open and the same shall be further enquired into by the learned District Judge, Jodhpur. The learned District Judge should call upon the parties to file their affidavits in support of their respective contentions on the question as to when the appellant received knowledge about the ex parte decree and should also allow the parties to cross examine the witnesses of the other party whose affidavits may now be filed, if they so desire. The case is remanded to the learned District Judge, Jodhpur for deriding the application under Order 9 Rule 13 C P C. afresh subject to the observations made above, after allowing the parties an opportunity to give evidence by way of affidavits, as specified above. The parties are directed to appear before the learned District Judge, Jodhpur on November 7, 1983 for further proceeding. The Learned District Judge should proceed as expeditiously as possible. The cost of this appeal shall abide the final result of the case.Appeal partly allowed. *******