JUDGMENT 1. - The law is not a brooding omnipotence in the sky but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory process. 2. In the instant case, effort to interpret second proviso of Order 9 Rule 13 CPC, has to be made. By the Code of Civil Procedure (Amendment) Act 1976, a second proviso has been added to the Rule 13 to ensure that the court should not set aside an ex-parte decree merely on the ground of irregularity in the service of the summons in a case where the defendant had adequate notice of the date of hearing of the suit. 3. The petitioner (tenant) was the defendant in the suit before the trial court on September 25, 1987 the court issued summons fixing September 26, 1987 for the hearing of the suit. As per process server's report, endorsed at the back of summons, the petitioner refused to accept service therefore, copy of summons was affixed on the open shop of the petitioner. Names and addresses of Sohan Das (husband of plaintiff landlord) and Kripa Nath Bhargava have been mentioned showing that copy of summons was affixed in their presence. It appears from the perusal of the report of process server that he effected the aforesaid service on September 26, 1987. However, it has not been mentioned, at what time he reached at the shop for effecting the service of summons on the petitioner. On September 26, 1987 when the suit was placed before the trial court, it was ordered that summons had been duly served. As no one was present on behalf of the defendant- petitioner, the case was posted for September 29, 1987 for passing the appropriate orders. The petitioner was proceeded ex-parte on September 29, 1987. The evidence of Sohan Das the husband of the plaintiff landlord, was recorded and thereafter an ex-parte decree was passed on November 19, 1987. 4. On June 2, 1989 the petitioner moved an application under Order 9 Rule 13 of the Code of Civil Procedure, for setting aside the exparte-decree passed on November 19, 1987. The application was dismissed by the trial court and then the defendant-petitioner preferred an appeal again[ the said order. The order nassed by the trial court was maintained by the court of appeal. The application was dismissed by the trial court and then the defendant-petitioner preferred an appeal again[ the said order. The order nassed by the trial court was maintained by the court of appeal. Against the said orders of the courts below, the present action for filing this revision, has been resorted to. 5. I have heard Sh. B.P. Agarwal, learned counsel for the defendant-petitioner, and Sh. M.D. Agarwal, learned counsel for the plaintiff non-petitioner, at length. 6. Sh. M.D. Agarwal, learned counsel for the plaintiff non-petitioner, raised a preliminary objection regarding the maintainability of the revision and canvassed vigorously that the summons was duly served on the defendant in view of the Order 5 Rule 17 CPC. Even if there is any irregularity in the service of summons, then also the exparte decree cannot be set-aside, in view of second proviso added to Rule 13 of Order 9 of the Code by the Amended Act 104 of 1976 which provides that no court shall set aside a decree passed exparte merely on the ground that there has been an irregularity in the service of summons, if is it satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Next submission of Sh. M.D. Agarwal, learned counsel is, that this court, while exercising the power under section 115 of the Code, would not interfere with the exercise of discretion by the Courts below, if it has been exercised in good faith after giving due weight to the relevant matters and without being swayed by irrelevant matters. It is only in case where subordinate court has exercised its jurisdiction not vested in it by law or has failed to exercise so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity, when the revisional jurisdiction of the High Court can be properly invoked. In support of these contentions Sh. It is only in case where subordinate court has exercised its jurisdiction not vested in it by law or has failed to exercise so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity, when the revisional jurisdiction of the High Court can be properly invoked. In support of these contentions Sh. M.D. Agarwal learned counsel, has placed reliance on Mali Ram Sharma & anothers v. Smt. Gayatri Devi (AIR 1985 Patna 116), Chhagan Lal and others v. Mukti Lal [1995(1) W.L.C. (Raj.) 535], the M.D. (MIC) Hindustan Aeronautics Ltd. v. Ajit Prasad (AIR 1973 Supreme Court 76) Sher Singh v. Joint Director ( AIR 1978 SC 1341 ), P. Udyani Devi v. V.V. Rajeshwara Prasad Rao and another [ 1995(3) SCC 252 ], Gokhinta Palli v. Nedunari (AIR 1962 A.P. 156) and Risaldar Pakhar Singh v. Bhajan Singh ( AIR 1987 P&H 170 .) 7. Sum and substance of arguments advanced by Sh. M.D. Agrawal, learned counsel is that concurrent finding of facts arrived at by the courts below cannot be interfered with and revision is not maintainable. 8. Sh. B.P. Agarwal, learned counsel, on the other hand, met the preliminary objection strenuously contending that the courts below have acted in disregard of provisions of law and the manner in which the courts below exercised their jurisdiction only shows that they have exercised their jurisdiction illegality or with material irregularity. My attention was drawn towards following peculiar circumstances of the case : (A) Summons in a suit for eviction issued on September 25, 1987 and service by affixture is alleged to be made on September 26, 1987 the same day when appearance of the defendant was needed at 10.30 A.M. (B) Affixure alleged to be made on the shop while address given in the summons was that of house. (C) No order for service by `Nishandehi' but alleged to be made so by the `Nishandehi' of the husband of the plaintiff Sh. Sohan Das. (D) No witness of the locality was procured to attest affixure. Both Sohan Das and Kripa Nath are interested witnesses residing at far away from the shop, where summons alleged to be affixed. (E) The execution petitioner was filed after two years of passing the exparte decree. (F) The defendant tenant came to know about the decree on May 29, 1989 when he met Sh. Both Sohan Das and Kripa Nath are interested witnesses residing at far away from the shop, where summons alleged to be affixed. (E) The execution petitioner was filed after two years of passing the exparte decree. (F) The defendant tenant came to know about the decree on May 29, 1989 when he met Sh. Sohan Das, the husband of plaintiff landlord in connection with settlement of the account of rent and was threatened by Sh. Sohan Das that a decree for eviction of shop was passed and the shop would be got vacated by police help. (G) Thereafter application under Order 9 Rule 13 was submitted within thirty days from the date of knowledge, of ex-parte decree, on the ground that the defendant never refused to accept the service of summons and he had no knowledge of the exparte decree prior to May 29, 1989. 9. Sh. B.P. Agarwal, learned counsel submitted that the trial court while issuing summons on September 25, 1987, did not allow sufficient time to the defendant to enable him to appear and answer on such day. Service by affixure is alleged to be made on September 26, 1987, the same day when appearance of the defendant was needed at 10.30 A.M. My attention was invited towards Order 5 Rule 6, which reads as under "The day for the appearance of the defendant shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons, and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day." 10. Reference of Order 9 Rule 6 was also made by Sh. Reference of Order 9 Rule 6 was also made by Sh. B.P. Agrawal, learned counsel, which reads as under : "(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then : (a) When summons duly served-If it is proved that the summons was duly served, the court may make an order that the suit be heard exparte; (b) When summons not duly served -If it is not proved that the summons was duly served, the court shall direct a record summons to be issued and served on the defendant; (c) When summons served but not in due time-If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the court shall postpone the hearing of the suit to a future day to be fixed by the court and shall direct notice of such day to be given to the defendant." (emphasis supplied) 11. Sh. B.P. Agarwal, learned counsel contended that summons was never served upon the defendant and the process server in collusion with the husband of the plaintiff, made a wrong endorsement at the back of the copy of summons, but even if it is assumed that summons was served, sufficient time was not allowed to the defendant to enable him to appear and answer on the day fixed in the summons. Service by affixure is alleged to be made on September 26, 1987 whereas appearance of the defendant was needed on the same day at 10.30 A.M. In view of the provisions contained in Order 9 Rule 6(c) it was necessary for the trial court to postpone the hearing of the suit to a future day and to issue notice of such day to the defendant. Mr. B.P. Agarwal, learned counsel has placed reliance on Gauhati University v. Niharlal Bhattacharjee [1995(6) Supreme Court Cases 731)]. 12. Mr. M.D. Agarwal, learned counsel for the plaintiff landlord, raised serious objection to the argument advanced by the learned counsel for the defendant tenant. He urged that the argument with reference to Order 9 Rule 6(c) was not advanced before the courts below as such it cannot be raised before this court for the first time. 13. Mr. 12. Mr. M.D. Agarwal, learned counsel for the plaintiff landlord, raised serious objection to the argument advanced by the learned counsel for the defendant tenant. He urged that the argument with reference to Order 9 Rule 6(c) was not advanced before the courts below as such it cannot be raised before this court for the first time. 13. Mr. B.P. Agrawal learned counsel for the defendant tenant, contended that legal question with reference to Order 9 Rule 6(c), goes to the very roof of the matter and is a pure question of law on the admitted facts of the parties. Under, these circumstances this legal ground can be allowed to be raised for the first time in revision. In support of this contention reliance has been placed on Shand Lal v. Ram Gopal [1983(1) All India Rent Control Journal 451 (Rajasthan) para 12] . 14. I have given my anxious and thoughtful consideration to the rival contentions and carefully perused the record. 15. Indisputedly, the summons was issued on September 25, 1987 for September 26, 1987 and service by affixure is alleged to be made on September 26, 1987, the same day when appearance of the defendant was needed at 10.30 A.M. 16. A crucial legal question which arises for consideration is as to whether the legal ground with regard to interpretation of Order 9 Rule 6(c) can be raised for the first time in this revision. In view of ratio laid down by this court in Shantilal v. Ram Gopal's case (supra) my answer to this question is in affirmative. In that case this court held that pure questions of law on the admitted facts of the parties which goes to the very roof of the matter, can be raised for the first time in revision. I am of the considered opinion that it was the duty of the courts below to critically and carefully examine the legal aspect relating to service of summons, irrespective of the arguments advanced before them or not. While considering the application filed under Order 9 Rule 13, it is always necessary for the court to read carefully the provisions contained in Order 5 Rule 6 and Order 9 Rule 6(c) of the Code. 17. While considering the application filed under Order 9 Rule 13, it is always necessary for the court to read carefully the provisions contained in Order 5 Rule 6 and Order 9 Rule 6(c) of the Code. 17. Article 123 of the Limitation Act 1908, envisages that limitation would run from the date of the decree, or where the summons or notice was not duly served, when the applicant had knowledge of the decree. In the instant case application under Order 9 Rule 13 was moved by the petitioner on June 2, 1989 stating therein that he came to know about the exparte decree for the first time on May 29, 1989 i.e. within thirty days from the date of knowledge of the decree. 18. In Gauhati University v. Nihar Lal Bhattacharjee (supra) the Hon'ble Supreme Court has observed as under : "It would thus be seen that when the summons is proved to be duly served, then the limitation begins to run under Article 123 from the date of decree. But when the summons, though served, but the defendant does not have due time, clause (c) of Rule 6 of Order 9 envisages further notice to be given, fixing a future date and the court shall direct notice of such date to be given to the defendant. In this case, admittedly, no such step had been taken. It is seen that though notice was served on the appellant on 28.5.1990 and the date was fixed for appearance was 29.5.1990, there was no time, much less sufficient, to reach the court for appearance on that date. While adjourning the suit to 19.7.1990, the said date was not communicated to the appellant, as envisaged in clause (c) of Rule 6 of Order 9. Thus the summons-was not duly served. The limitation began to run only when the appellant had knowledge of the exparte decree." 19. The facts of Gauhati University's case (supra) and the instant case are almost identical. In the instant case the summons was served on the defendant on September 26, 1987 and the date fixed for appearance was also September 26, 1987. The defendant did not have time, much less sufficient time to reach the court for appearance on that date while adjourning the suit on September 29, 1987, the said date was not communicated to the defendant, as envisaged in clause C of Rule 6 of Order 9. The defendant did not have time, much less sufficient time to reach the court for appearance on that date while adjourning the suit on September 29, 1987, the said date was not communicated to the defendant, as envisaged in clause C of Rule 6 of Order 9. Thus it may be held that summons was not duly served on the defendant and the limitation began to run from the date of knowledge of the decree i.e. from May 29, 1989. As such application filed by the defendant petitioner on June 2, 1989, was within limitation in view of Article 123 of the Limitation Act. 20. Thus arguments advanced by Sh. M.D. Agarwal, learned counsel for the plaintiff non-petitioner can be accepted. Even second proviso added to Rule 13 of Order 9, by Amended Act 1976, provides that court should not set aside exparte decree merely on the ground of irregularity of service of summons in a case where the defendant had adequate notice of the date of hearing of the suit. It implies that where the defendant did not have adequate notice of the date of hearing of the suit, the exparte decree may be set aside even on the ground of irregularity of service of summons. The second proviso appended to Rule 13 of Order 9, ought to have been read with the provisions contained in Rule 6 of Order 5 and clause (C) of Rule 6 of Order 9 of the Code. Ratio of cases cited by Sh. M.D. Agarwal learned counsel is not applicable in the facts of the instant case. 21. Upshot of the above discussion is that the courts below have committed illegality in exercise of jurisdiction vested in them in rejecting the application submitted by the defendant petitioner under Order 9 Rule 13 of the Code and if the impugned Orders are allowed to stand, failure of justice would be occasioned. 22. In the result the revision succeeds and is hereby allowed. The impugned orders of the courts below as well as exparte decree dated November 19, 1987 are set aside. The matter is remitted to the trial court which would take such steps as are needed for filing the written statement etc. The parties are directed to appear before the trial court on Januaiy 16, 1997. No costs. Record of the case be sent back forthwith. The matter is remitted to the trial court which would take such steps as are needed for filing the written statement etc. The parties are directed to appear before the trial court on Januaiy 16, 1997. No costs. Record of the case be sent back forthwith. The trial court is expected to complete the trial within six months from today and the learned counsel are expected to assist the trial Court in completing the trial within this period.Revision Allowed. *******