JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard the Advocates for the parties. Perused the records. Rule. By consent, rule is made returnable forthwith. 2. The lower Appellate Court by the impugned order has set aside the order passed by the trial Court rejecting the application under Order 9, Rule 13 of Civil Procedure Code. It has been clearly observed by the lower Appellate Court that there was no proper service of summons upon the respondents in the suit and that there is no material on record to hold that the respondents were aware of the decree passed against him much prior to December 1996. Undisputedly, the application was filed in January 1997. The impugned order is sought to be challenged on the sole ground that the decree having been passed under Order 8, Rule 5 of C.P.C., considering the law laid down by this Court in (Laxman Zingraji Adhau v. Sushila Zinguji Thakre)1, reported in 1995(4) Bom.C.R. 677 , there was no scope for interference in the order of the trial Court and/or allowing the application under Order 9, Rule 13 of C.P.C. 3. Few facts relevant for the decision are that the petitioner filed R.C.S. No. 476 of 1989, against the respondents after issuing notice of termination of tenancy. The notice, however, was returned with the postal remark "addressee does not reside at the address". Summons in relation to the suit was sought to be served upon the respondent by way of substituted service. As the respondents did not appear in the suit, the suit proceeded ex parte. The petitioner examined himself in support of his case and the trial Court decreed the suit on 27-6-1996. The respondent No. 1 learnt about the proceedings in the suit on 23-12-1996 and hereafter filed an application under Order 9, Rule 13 of C.P.C. on 8-1-1997. The respondent also led evidence in support of the application by examining the respondent No. 1 and two witnesses. The trial Court dismissed the application for setting aside the ex-parte decree, by its order dated 20-1-2000. The same order is set aside by the lower Appellate Court by the impugned order dated 4th May, 2001 in Misc. Civil Appeal No. 59 of 2000. 4. The trial Court dismissed the application on two counts. Firstly, that the same was beyond the period of limitation and secondly that the summons in the suit was properly served upon the respondent. Civil Appeal No. 59 of 2000. 4. The trial Court dismissed the application on two counts. Firstly, that the same was beyond the period of limitation and secondly that the summons in the suit was properly served upon the respondent. Both the findings of the trial Courts have been set aside by the lower Appellate Court in the impugned order. 5. As regards the service of summons, it is revealed from the records that the petitioner/plaintiff had failed to take appropriate steps to find out the correct address of the respondents and the summons was sought to be served on the address where the respondents were not residing at the relevant time and that the trial Court totally ignored this aspect and in most casual manner allowed the petitioner to serve the respondents/defendants by way of substitute service, thereby denying fair opportunity to the respondents to get the knowledge about the institution of the said suit against them by the petitioner. The Appellate Court has clearly arrived at finding, on assessment of materials on record, that it was not proper on the part of the learned trial Judge to readily allow substituted service under Order V, Rule 20 of C.P.C. without recording satisfaction that the summons could not be served in the ordinary course as contemplated by Order V or that the respondent No. 2 was avoiding the service. In the facts and circumstances therefore no fault can be found with the said finding which is clearly borne out from the record. It is always to be borne in mind that service of summons under Order V, Rule 20 of C.P.C., cannot be allowed as a matter of course, and in a casual manner. Record should disclose the satisfaction of the Court about avoidance of service of summons in regular course by the defendant and necessity for allowing such substituted service of summons. It is also to be borne in mind that service of summons is not an idle formality. It has to be an effective service so that the persons against whom proceedings are initiated get sufficient and fair opportunity to defend their rights. It is also to be borne in mind that service of summons is not an idle formality. It has to be an effective service so that the persons against whom proceedings are initiated get sufficient and fair opportunity to defend their rights. Hence, in the absence of service of summons, if the decree is passed and same is brought to the notice of the Court passing decree, certainly it would be the duty of the Court to exercise its jurisdiction under Order 9, Rule 13 of C.P.C. 6. As regards the point of limitation, referring to the observation of the trial Court in its order dated 20th January, 2000 it was sought to be argued that the respondents had knowledge about the decree in August 1996 itself, and the application under Order 9, Rule 13 of C.P.C. filed in January, 1997 that was beyond the period of 30 days from the date of knowledge of the decree. 7. The trial Court in its order has observed that the respondent has admitted during the cross-examination that he came to know about the breaking of lock of a room in the month of August 1996. It is a matter of record that the decree for possession was executed by breaking open the lock, however, as rightly observed by the lower Appellate Court, the respondents have nowhere admitted that he had knowledge about the decree in the suit in August 1996 itself. On the contrary, it is a specific case that he came to know about the decree only in December 1996 and immediately applied for certified copy on 14-12-1996 and obtained the same on 24-12-1996 and filed application under Order 9, Rule 13 of C.P.C. on 7-1-1997. This apparently shows that the statement of the respondent to the effect that he came to know about the breaking open of lock in August 1996, was sought to be misconstrued to mean that he had knowledge about the decree in August 1996, and the application, therefore, was filed beyond 30 days. The lower Appellate Court, therefore, has clearly held that the knowledge to the respondents in August 1996 was to the extent of taking possession of the room by breaking open the lock and it does not necessarily mean that he also knew about the ex parte decree in that month itself. The lower Appellate Court, therefore, has clearly held that the knowledge to the respondents in August 1996 was to the extent of taking possession of the room by breaking open the lock and it does not necessarily mean that he also knew about the ex parte decree in that month itself. For the purpose of consideration of the application under Order 9, Rule 13 of C.P.C. the period of 30 days is to be counted from the date of the knowledge of the decree. Certainly records do not disclose that, the respondents had any knowledge of the decree prior to 14-12-1996 and the application having been filed on 7-1-1997, it cannot be said that the same was barred by law of limitation. 8. As regards the point relating to non-maintainability of the application under Order 9, Rule 13 of C.P.C. the suit having been disposed of under Order 8, Rule 5(2) of C.P.C., it is to be noted that no such point was raised before the Court below. However, being a point of law, and even though it is alleged to have been raised for the first time in the revision application, the same is allowed to be agitated. Indeed, the learned Single Judge of this Court in Laxman Zingraji Adhau v. Sushila Zingraji Thakre's case after taking into consideration various earlier decisions of this Court has ruled that a judgment or decree passed in exercise of power under Order 8, Rule 5 of C.P.C., is not an ex parte decree and the application for setting aside the judgment and decree passed in exercise of the powers under Order 8, Rule 5 and Rule 10 of C.P.C. is not maintainable. 9. It is pertinent to note that in Laxman Zingraji Adhau's case undisputed facts were that the civil suit filed by the plaintiff, the trial Court proceeded under Order 8, Rule 5(2) of C.P.C. and passed the decree. It was contention of the defendant therein that the decree was ex parte decree and, therefore, the application under Order 9, Rule 13 of C.P.C. was maintainable. The said contention was rejected by the learned Single Judge considering the consistent view taken by this Court on point in issue. It will be, therefore, necessary to ascertain whether suit proceeded under Order 8, Rule 5(2) or under Order 8, Rule 10 of C.P.C. or it is an ex parte decree. 10. The said contention was rejected by the learned Single Judge considering the consistent view taken by this Court on point in issue. It will be, therefore, necessary to ascertain whether suit proceeded under Order 8, Rule 5(2) or under Order 8, Rule 10 of C.P.C. or it is an ex parte decree. 10. Perusal of the records disclose that whether the decree in question is an ex parte decree or not was never raised either before the trial Court or before the lower Court Appellate Court, nor even in the memo of revision application filed before this Court there is no whisper about the same. It is only during the hearing of the petition that point is sought to be raised. It is also pertinent that the parties have all throughout accepted the decree to be an ex parte decree. Even para 8 of the Revision Application specifically states, "the respondents have deliberately avoided the service of summons of the Reg. Civil Suit No. 476 of 1998 and, therefore, the learned Single Judge, Thane, rightly proceeded with the Regular Civil Suit No. 476 of 1998 ex parte and passed the judgment and decree dated 27-6-1996. The Additional District Judge acted contrary to the evidence on record held that the respondent had not knowledge about the said ex parte judgment and decree". After filing of the petition as he could lay his hands on the decision of learned Single Judge in Laxman Zingraji Andhav's case, that the petitioner has sought to raise contention that the decree in question is one under Order 8, Rule 5(2). 11. However, records do not lend any support to the said contention of the petitioner. On the contrary, the judgment and decree dated 27-6-1996 apparently proves to the contrary. The copy of the said judgment and decree dated 27-6-1996 on record clearly reveals that it is an ex parte decree. In fact, para 5 of the judgment reads thus: "The defendants were duly served but did not appear, and hence this suit is ex parte proceedings." Apparently, the trial Court proceeded with the matter in terms of Order 9, Rule 6 of C.P.C. and neither under Order 8, Rule 5(2) nor under Order 8, Rule 10 of C.P.C. 12. In fact, para 5 of the judgment reads thus: "The defendants were duly served but did not appear, and hence this suit is ex parte proceedings." Apparently, the trial Court proceeded with the matter in terms of Order 9, Rule 6 of C.P.C. and neither under Order 8, Rule 5(2) nor under Order 8, Rule 10 of C.P.C. 12. Once the Court below has found that the summons in the suit was not properly served upon the respondent, question of holding that the decree passed was in terms of Order 8, Rule 5 or 10 of C.P.C. does not arise at all. Being so, the decision reported in Laxman Zingraji Adhau's case is of no assistance to the petitioner. It is also to be borne in mind that the parties are not to be denied their right of defence in a suit and bearing in mind the same, no fault can be found with the order passed by the lower Appellate Court in allowing that application under Rule 9, Rule 13 of C.P.C. Once the record discloses that there was no proper service of summons upon the respondents defendants, it cannot be said that the Court below has acted illegally and improperly in exercise of the jurisdiction while allowing the application under Order 9, Rule 13 of the C.P.C. Hence, there is no case for interference in the impugned order in revisional jurisdiction by this Court. Civil Revision Application is dismissed. Rule is discharged with no order as to costs. Civil revision application dismissed. -----