D. G. KARIA, J. ( 1 ) THE appellant against whom the ex-parte decree was passed on July 22, 1986 in Special Civil Suit No. 8 of 1985 for specific performance of the contract, has preferred this Appeal From Order against the judgment and order dated February 10, 1989 passed by the learned 2nd Joint Civil Judge (S. D.), Kutch at Bhuj, rejecting the application of the appellant herein (being Civil Misc. Application No. 90 of 1986) for setting aside the aforesaid ex-parte decree. ( 2 ) MR. JAYANT Patel, learned Advocate appearing for the appellant, has taken me through the relevant record and the impugned judgment. He contended that the summons that was ordered to be issued in the Special Civil Suit No. 8 of 1985 was for settlement of the issue and it was not for final disposal of the suit. Mr. Patel invited my attention to the order dated 29-1-1985 passed by the learned Civil judge (S. D.) at Bhuj to issue summons under Order V, Rules 1 and 5 of the Code of civil Procedure for settlement of issues. The learned Judge has clearly struck off "final disposal" in the said order. Relying upon this order passed below plaint Exh. 1, Mr. Patel submitted that at the initial stage the summons was for the purpose of settlement of issues and in absence of any other summons for final disposal of the suit, no decree, much less ex-parte decree could have been passed against the appellant. There is also another order dated 18-2-1985 passed by the trial Court below the plaint to the effect that the summons on the defendant and the notice of the injunction are served by affixing and on calling out his name, he is not present and as such the proceeding of the suit be conducted ex- parte against him. However, there does not appear to be any order passed by the trial Court that the substituted service by affixing summons on the outer part of the residence of the defendant or at a conspicuous part of his residence, be effected. ( 3 ) AS against this submission of Mr. Patel, Mr. However, there does not appear to be any order passed by the trial Court that the substituted service by affixing summons on the outer part of the residence of the defendant or at a conspicuous part of his residence, be effected. ( 3 ) AS against this submission of Mr. Patel, Mr. M. B. Gandhi, learned Advocate appearing for the respondent, has relied on the copy of the summons itself, wherein it is clearly mentioned that the summons is issued for the settlement of the issues and on the date of hearing, i. e. , 18-2-1985 if the defendant fails to appear before the Court, the suit will be disposed of in his absence. Pointing out the copy of the said summons at Exh. 9, page 38, Mr. Gandhi submitted that the summons that was issued was under Order V, Rules 1 and 5 of the Code of Civil Procedure, 1908 and as such it cannot be said that the summons was only for the settlement of the issues. ( 4 ) ORDER V of the Code of Civil Procedure, 1908 is with regard to issue and service of summons. Rule 1 Order V contemplates that when a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified. Rule 5 of Order V provides that the Court shall determine, at the time of issuing the summons, whether it shall be for the settlements of issue only, or for the final disposal of the suit; and the summons shall contain a direction accordingly; Provided that in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. Admittedly, the Special Civil Suit filed by the respondent-plaintiff was not in the Small Causes court and as such the summons issued could not be for final disposal of the suit. The summons at Exh. 9 which was sought to be served on the appellant-defendant clearly recites that the summons was for the settlement of issues and further directing the defendant to remain present on 18-2-1985. However, the summons also reads that on failure of the defendant to appear in the suit, the suit will be disposed of in his absence. However, there is nothing in the summons at Exh. However, the summons also reads that on failure of the defendant to appear in the suit, the suit will be disposed of in his absence. However, there is nothing in the summons at Exh. 9 to show that the said summons was issued for final disposal of the suit. ( 5 ) BE that as it may, the main question is whether the appellant-defendant was duly served with the summons of the suit. In this context, the report of the bailiff in regard to service of the summons is material. Admittedly, the summons on the defendant was not directly served. The report, when translated into English, will read as under :-"today at about 6-30 evening, on 30-1-1985, at Madhapar, the defendant Devji naran Bhudia has refused to sign in this; hence it is being affixed on the gate of the house No. 2-2-64". ( 6 ) BELOW the aforesaid report, there are two signatures, one is of Isaq and another is of Ramesh Parshottam. Thereafter, the bailiff has made a report to the effect that the defendant refused to sign the summons and hence it was served by affixing on his house. The said report is dated 2nd February, 1985. ( 7 ) ADMITTEDLY, the plaintiff had not accompanied the bailiff at the time of service of the aforesaid summons. There is nothing on the record to suggest that the bailiff knew the defendant before he made attempt to serve the summons on him. The endorsement made by the bailiff at the time of affixing of the summons on the gate of the house of the defendant on January 30, 1985 does not disclose whether the two persons who signed below that endorsement were witnesses to the alleged fact of refusal of summons by the defendant and that they had identified the residential premises as belonging to the defendant. Admittedly, no addresses of SUCHtwo persons are stated below the endorsement. Admittedly, no addresses of SUCHtwo persons are stated below the endorsement. In this connection, if Rule 17 of Order V of the Code of Civil Procedure is perused, it is clear that on defendants refusal to accept the summons, the bailiff may serve the summons by affixing it on the outer door or some conspicuous part of the house in which the defendant ordinarily resides and shall then return the original summons to the Court with a report endorsed thereon, stating that he has so affixed the copy of the summons, the circumstances under which he did so, and the name and the address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. Rule 17 of Order V of the Code reads as under :- ( 8 ) "procedure when defendant refuses to accept service, or cannot be found :- where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant who is absent from residence at the time when service 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 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 annexed thereto stating that he has 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 was identified and in whose presence the copy was affixed". ( 9 ) IN the facts of the present case, the provisions of the aforesaid Rule are clearly attracted, as the bailiff has not stated the circumstances under which he effected substituted service of the summons by affixing it on the gate of house No. 2-2-64 at Madhapur village. ( 9 ) IN the facts of the present case, the provisions of the aforesaid Rule are clearly attracted, as the bailiff has not stated the circumstances under which he effected substituted service of the summons by affixing it on the gate of house No. 2-2-64 at Madhapur village. Admittedly, the full addresses of the two persons named in the report are not stated. The said endorsement dated January 30, 1985 does not state, in any way, that either of two persons named in the report had identified that house No. 2-2-64 at Madhapar village was the house wherein the defendant had been ordinarily residing. There is, therefore, no compliance of Rule ( 10 ) OF Order V of the Code while effecting the substituted service by affixing on the house of the defendant. ( 11 ) THE learned Judge, while dealing with this point, has relied on the deposition of the appellant, Devji Naran, at Exh. 38. He deposed that his residence is located at Nava Vas in Madhapar. However, his house number is not 2-2-64 of that Gram panchayat. He denied that on January 30, 1985 at about 6-30 to 7-00 evening, the bailiff had come to his place for service of the summons and that he had refused to accept it. He also stated that no paper was affixed on the gate of his house. The appellant has, however, admitted in his cross-examination that he has received the papers of injunction by Registered A. D. Post. The learned Judge has, therefore, held that the defendant has due notice of the proceedings of the suit, as the injunction order was served on him by Registered Post. The learned Judge further held that madhapar is a small village and therefore, the plaintiff should have known about the service of the notice when it was affixed on the house. However, there is nothing on the record to show that the Registered A. D. Post contained any notice intimating the appellant about the date of hearing of the suit. Mr. However, there is nothing on the record to show that the Registered A. D. Post contained any notice intimating the appellant about the date of hearing of the suit. Mr. Gandhi for the respondent, contended that Registered A. D. Post was sent to the defendant by forwarding a copy of the plaint, injunction application, affidavit and other documents in compliance of Rule 3 of Order XXXIX and it was admitted by the defendant, it should, therefore, be treated as proper notice of the suit; the appellant did not care to appear before the Court and as such it cannot be said that there was no due service of the summons nor was he prevented by any sufficient cause from appearing in the suit. In the facts of the case, coupled with the materials on record, I am unable to agree with the contention of Mr. Gandhi, for the intimation of issuance of injunction against the defendant would not constitute due and valid service of the summons of the suit, nor it can be assumed that the defendant had notice of the date of the hearing and had sufficient time to appear and answer the plaintiffs claim. ( 12 ) THE learned Judge has observed that the two Panch witnesses who signed the endorsement of so-called service of the summons, are not stated to be of Madhapar village. It also does not state that they are not of Madhapar village. The learned judge has further observed that the appellant has not made any attempt to inquire about the whereabouts of both these Panch witnesses. This appears to be negative approach. I have perused the endorsement and report. Name of the village to which the witnesses belong is not stated therein. It cannot be assumed that they, therefore, belong to Madhapar. In absence of any address mentioned below the endorsement, one would be at loss to understand as to how and what inquiry could be made about the Panch witnesses. When Rule 17 of Order V of the Code has not been complied, the burden cannot be shifted on the appellant about examining these Panch witnesses. The learned Judge has mainly relied upon the admission of the appellant about receipt of Registered A. D. Post wherein the documents about injunction were sent. When Rule 17 of Order V of the Code has not been complied, the burden cannot be shifted on the appellant about examining these Panch witnesses. The learned Judge has mainly relied upon the admission of the appellant about receipt of Registered A. D. Post wherein the documents about injunction were sent. The learned Judge has resorted to Order V Rule 19-A of the Code in this connection, treating as simultaneous service of the notice on the defendant. In my view, the learned trial Judge has misconstrued the provisions of Rule 19a of Order V. Rule 19-A contemplates that the Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by Registered Post, acknowledgement due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain. Admittedly, in the present case, at the time of ordering to issue summons for settlement of the issues on 29-1-1985, the court did not pass any such order for simultaneous issue of summons in addition to personal service on the defendant. Simply because the communication was sent as required under Order XXXIX Rule 3 of the Code, it cannot be said that there was simultaneous service of summons as provided under Rule 19-A of Order V. The learned Judge appears to have misconceived the provisions of Rule 19-A of Order v of the Code. ( 13 ) THE learned Judge further held that there was no irregularity in service of summons on the defendant and as such no decree could be set aside under Order IX rule 13 of the Code. Apart irregularity, there is no due and proper service of the summons, inasmuch as the records reveal that nobody had identified that the house on which the summons is said to have been affixed belonged to the defendant, nor the persons who signed below the endorsement stated that either of them knew the defendant or that the bailiff knew the defendant or the defendant was identified by anyone. There is total non-compliance of the provisions of Rule 17 of Order V. As noticed hereinabove, the addresses of both the Panch witnesses are also not stated in the report as required under Rule 17 of Order V of the Code. There is, therefore, non-compliance of Rule 17 of Order V and by stretch of no reasoning it can be said that there was due and proper service of the summons on the defendant. The learned judge has thus committed an error in observing that there may be an irregularity in service of summons which was condonable in view of the provisions of Order IX rule 13 of the Code of Civil Procedure. Having regard to the facts and circumstances of the case and the materials on record, there cannot be said to be a due service of the summons on the defendant. ( 14 ) MR. Gandhi, learned Advocate appearing for the respondent, contended that the appellant was in know of the grant of the injunction and had notice of it and yet he did not appear. The appellant was thus careless and negligent and as such the trial Court was justified in rejecting his application for setting aside the ex-parte decree. I see no force in this contention, inasmuch as what is necessary for setting aside the ex -parte decree is that summons was not duly served or that the defendant was prevented by sufficient cause from appearing when the suit was called on for hearing. There is nothing on the record to show that the defendant had notice of the date of hearing or had sufficient time or opportunity to appear and answer the plaintiffs suit. The learned Judge has also placed much reliance on some advice of an old man by showing the intimation of injunction and concluding that he had knowledge of the proceedings of the suit. However, that fact by itself does not establish that the defendant-appellant knew about the date of hearing, for there was no due service of summons on the defendant. ( 15 ) MR. Patel relied on the case of Tilak Raj v. Mst. Lalli Bai, reported in air 1976 Rajasthan 82. However, that fact by itself does not establish that the defendant-appellant knew about the date of hearing, for there was no due service of summons on the defendant. ( 15 ) MR. Patel relied on the case of Tilak Raj v. Mst. Lalli Bai, reported in air 1976 Rajasthan 82. In that case, the process-server in his report merely mentioned the names of two persons in whose presence the petitioner refused to accept the copy of the summons and before whom a copy of the summons along with a copy of the plaint was affixed on the outer door of his house. The addresses of the two persons by whom the house was identified and before whom the copy was affixed were not mentioned by the process-server in his report. On account of the failure of the process-server to mention the addresses of such two persons in his report, it was not possible for the defendant to produce them in the Court to establish the real facts and to wipe out the effect of the process-servers report, which was proved by his evidence. It was then an irreconcilable contradiction between his report and his statement on oath relating to the date on which service of summons was effected. It was, therefore, held that there was no due service of summons on the defendant in accordance with law. This decision was also cited before the trial Court. The learned Judge observed that the facts of the case before the Rajasthan High court were different than those of the present case. The learned Judge again relied upon the communication of the intimation of Order XXXIX Rule 3 injunction and held that the defendant had sufficient time to appear before the Court. Admittedly, in this case also, the addresses of the two persons in whose presence the summons is said to have been affixed on the outer door of the house, are not mentioned in the report. In the facts of the case, the decision is squarely applicable to the facts and circumstances of the case, and it cannot be discarded on the ground that the facts of both the cases are different. ( 16 ) MR. Patel then relied upon the case of Pazhekottal Nabeessu v. Pazhekottal kunhamina and Ors. In the facts of the case, the decision is squarely applicable to the facts and circumstances of the case, and it cannot be discarded on the ground that the facts of both the cases are different. ( 16 ) MR. Patel then relied upon the case of Pazhekottal Nabeessu v. Pazhekottal kunhamina and Ors. , reported in AIR 1978 Kerala 143, wherein it is held that mere endorsement on the summons as a refusal to accept summons cannot constitute sufficient service under Order 5 Rule 19 in absence of a declaration of sufficiency of service. Once it is found that the summons was not duly served time runs for filing the application for setting aside an ex-parte decree from the date of knowledge of the decree. Thus, having regard to the provisions Order IX Rule 13 of the Code of Civil Procedure, the learned Judge erred in law in dismissing the application. ( 17 ) MR. Gandhi lastly relied on the provisions of Secs. 101, 102 and 114 of the Evidence Act, contending that the defendant did not discharge the burden with regard to non-service of the summons. It is true that the appellant-defendant asserted that he was not served with the summons of the suit. The initial burden would, therefore, be on the defendant to show that there was no due and proper service of the summons. Having regard to the endorsement made by the bailiff in this case, it is clear that the summons was not served on the defendant, nor can he be said to have refused the summons, as the two persons signing below the report do not identify the defendant as the person, having refused to accept the summons nor neither of them has identified the house on which the summons was affixed as belonging to the defendant. Sec. 102 of the Evidence Act provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. In the present case, there is reliable and satisfactory evidence, oral as well as documentary, to show that there was no due and proper service of the summons on the defendant. In the facts of the case, the provisions of secs. 101 and 102 of the Evidence Act cannot be pressed into service. Mr. In the present case, there is reliable and satisfactory evidence, oral as well as documentary, to show that there was no due and proper service of the summons on the defendant. In the facts of the case, the provisions of secs. 101 and 102 of the Evidence Act cannot be pressed into service. Mr. Gandhi submitted that the due service of summons should be presumed, as was effected in the common course of natural duty of the bailiff, and for this, he relied on Sec. 114 of the Evidence Act. The materials on record do show that there was no due service of summons and the provisions of Order V Rule 17 of the Code of Civil procedure were not complied with at all and in these circumstances, no presumption under Sec. 114 of the Evidence Act can be raised against the defendant. The words "may presume" occurring in Sec. 114 of the Evidence Act leave it to Court to make or not to make the presumption according to the circumstances of the case. The facts and circumstances of the present case, and particularly the endorsement and the report made by the bailiff do establish that there was no due and proper service of summons and as such the so-called official act on the part of the bailiff invoking sec. 114 of the Evidence Act would have no place in the matter. I, therefore, reject the contention of Mr. Gandhi, in this behalf. ( 18 ) FOR the foregoing reasons, the Appeal From Order is allowed with no order as to costs. The impugned judgment and order is quashed and set aside. The application of the appellant under Order IX, Rule 13 of the Code of Civil Procedure, 1908 stands granted. The judgment and decree in Special Civil Suit No. 8 of 1985 on the file of the learned Civil Judge (S. D.), Kutch at Bhuj are set aside. ( 19 ) SUFFICIENT time has elapsed since passing of the ex-parte decree. It is, therefore, necessary that the suit is heard and disposed of expeditiously, Mr. Jayant patel, learned Advocate appearing for the appellant-defendant, undertakes that the defendant will remain present either personally or through his Advocate, on 2nd december 1996 before the trial Court in the suit proceedings. The trial Court is directed to expedite the hearing of the suit. It is, therefore, necessary that the suit is heard and disposed of expeditiously, Mr. Jayant patel, learned Advocate appearing for the appellant-defendant, undertakes that the defendant will remain present either personally or through his Advocate, on 2nd december 1996 before the trial Court in the suit proceedings. The trial Court is directed to expedite the hearing of the suit. Records and Proceedings to be sent back to the trial Court forthwith. .