JUDGMENT Devi Prasad Singh, J.—Heard Sri D. C. Jain, holding brief of Sri H. S. Sahai, learned counsel for the petitioners and Sri P. L. Mishra for opposite party No. 2. None present for opposite party No. 3. 2. According to the learned counsel for the parties plaintiff/opposite party No. 2 entered into an agreement with one Ram Krishna Giri on 15.12.1979 for sale of certain agricultural land. However, the land was purchased by the defendant/petitioners from Ram Krishna Giri on 6.10.1981. Accordingly a suit for specific performance of contract was filed by the plaintiff/opposite party No. 2. The suit was decreed without effective service of notice on defendant, on 27.7.1982. The trial court while decreeing the suit directed for execution of sale deed in favour plaintiff by the decree dated 27.7.1982. Defendant/petitioners filed application under Order IX Rule 13 of C.P.C. in September, 1982, for setting aside the ex parte decree and for decision on merit. The trial court had allowed the application by the judgment and order dated 27.5.1983 on payment of cost to the tune of Rs. 25. The finding of the trial court is that a notice was affixed over the house of defendant/petitioners. At the time when the notice was affixed the defendant/petitioners were not available in the house and they were out of station. The report of process server states that the petitioners were out of station. 3. Feeling aggrieved by the order dated 27.5.1983, passed by the trial court plaintiff/opposite party No. 2 had filed a revision under Section 115 of C.P.C. The revisional court after hearing the parties, allowed the revision by the impugned order dated 12.1.1985 and set aside the trial court’s order on the ground that in view of the proviso of Order IX Rule 13 of C.P.C. mere irregularity is not sufficient to set aside the ex parte decree. It has been further held by the revisional court that in the mutation proceeding the statement of plaintiff Ram Raj was recorded on 17.3.1982 and in his statement it was stated by the plaintiff that he had already filed a civil suit for specific performance of contract. It has been further held by the revisional court that in the mutation proceeding the statement of plaintiff Ram Raj was recorded on 17.3.1982 and in his statement it was stated by the plaintiff that he had already filed a civil suit for specific performance of contract. The finding of the revisional court is that there was only court of civil Judge in District Gonda and accordingly once the statement was made by the plaintiff Ram Raj in the mutation proceeding, it was incumbent on defendant to search out the case and appear in suit to avoid ex parte decree. 4. Order IX Rule 13 of C.P.C. provides that the ex parte decree may not be set aside merely on the ground that there has been irregularity in service of summons. The revisional court was satisfied that the defendant had notice of the date of hearing and was having sufficient time to answer plaintiff’s claim. For convenience Order IX Rule 13 of C.P.C. is reproduced hereunder : “13. Setting aside, decree ex parte decree against defendant. —In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit : Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also : Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. [Explanation.—Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.]” 5. A plain reading of proviso of Order IX Rule 13 of C.P.C., shows that the irregularity in service shall not be a ground to set aside the ex parte decree or award and in case the Court is satisfied that the defendant was having notice of the date of hearing then the decree should not be set aside. I have given anxious consideration to the argument of learned counsel for the parties relating to interpretation of Order IX of Rule 13 of C.P.C. 6. Irregularity in service does not mean that even if a notice has not been served on a party, it will not make a ground to set aside ex parte decree. Procedural irregularity in service is different thing and lack of total service is different thing. The finding given by the trial court shows that the notice was not served on defendant/petitioner and it was affixed outside the house. The trial court’s observation shows that according to the process server report the defendant/petitioners was out of the station and accordingly the notice was affixed in front of their house. The trial court has not considered the factum relating to service on defendant by adopting other mode like publication in news paper etc., and proceeded to decree the suit ex parte. 7. Moreover, the order of trial court should not have been set aside by the revisional court by re-appreciation of the material on record. Once trial court has set aside the ex parte decree on the ground that the defendant/petitioners were out of station and notice was not effectively served on them, it was not desirable on the revisional court while exercising the revisional jurisdiction to set aside the order passed by the trial court. The revisional court under Section 115 of C.P.C. does not have to re-appreciate the entire evidence and material on record. The revisional court under Section 115 of C.P.C. does not have to re-appreciate the entire evidence and material on record. The revisional court can exercise jurisdiction on three grounds as provided under Section 115 of C.P.C., i.e., in case a court below has exercised its jurisdiction not so vest in it by law, or have failed to exercise jurisdiction vested in it or have acted while exercising its jurisdiction illegally or with material irregularity. Section 115 of C.P.C. is reproduced hereunder : “115. Revision.—(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears : (a) to have exercised a jurisdiction not vested in ; or (b) ........................................ ..................... (c) it by law ; or (d) to have failed to exercised a jurisdiction so vested ; or (e) to have acted in the exercise of its jurisdiction illegally or without material irregularity. The High Court may make such order in the case as it thinks fit :] Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.] (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. Explanation.—In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.]” 8. So far as other contention of the learned counsel for the parties that the statement was recorded in the mutation proceeding of the plaintiff Ram Raj on 7.3.1982, in which he made a statement relating to filing of civil suit for specific performance of contract. So far as other contention of the learned counsel for the parties that the statement was recorded in the mutation proceeding of the plaintiff Ram Raj on 7.3.1982, in which he made a statement relating to filing of civil suit for specific performance of contract. Nothing has been brought on record which may show that the defendants were present at the time when the statement was recorded with specific averments. Moreover, burden lies on the plaintiff to pursue the Court for affecting service on defendant and the proceeding of case should stand on his own leg. The proviso of Order IX Rule 13 postulate that in case the Court is satisfied relating to notice only then service of notice or knowledge of the petitioners relating to pendency of the case can be presumed and the ex parte decree should not be set aside. In the present case, the trial court has given its finding on the basis of material on record and being satisfied held that the defendant was having no knowledge of the date of hearing. The revisional court should have not substituted its opinion while exercising the revisional jurisdiction under Section 115 of C.P.C. over and above the opinion formed by the trial court after re-appreciation of evidence on record. 9. Moreover a plain reading of Order IX Rule 13 of C.P.C. shows that a party against whom an ex parte decree has been passed should have the knowledge of the date fixed in the Court concerned. Here the intention of the Legislature to invoke the provision of Order IX Rule 13 of C.P.C. relates to the knowledge of “date of hearing”. There may be circumstances when a defendant could have gathered the knowledge relating to the pendency of the suit and not the date of hearing. A suit may be decreed ex parte in the absence of knowledge of date of hearing by the time the defendant reaches the Court or search out the pendency of the case. Moreover, the burden lies on the Court as well as on the plaintiff to effect service on the defendant. Similarly, the burden lies on the plaintiff to show that the defendant was having knowledge of the date fixed for hearing. The date fixed for hearing means the date when the Court proceeded ex parte to decide the suit. 10. Moreover, the burden lies on the Court as well as on the plaintiff to effect service on the defendant. Similarly, the burden lies on the plaintiff to show that the defendant was having knowledge of the date fixed for hearing. The date fixed for hearing means the date when the Court proceeded ex parte to decide the suit. 10. In the present case, there is no material on record which shows that the defendant/petitioner was having knowledge of the date of hearing, when the trial court had proceeded to decree the suit and accordingly the judgment and order of the trial court seems to be based on sound principle of law and it was not desirable for the revisional court to interfere with the said judgment. 11. The learned counsel for the petitioners relied upon the judgment of Apex Court in G. P. Srivastava v. R. K. Raizada and others, 2000 (2) AWC 1294 (SC) : (2000) 3 SCC 54 . The Apex Court in the case of G. P. Srivastava held that in case sufficient cause is made out for defendant to absent on the date fixed for hearing, when ex parte proceeding was initiated against him he cannot penalise for previous absence. Ratio of G. P. Srivastava’s case (supra) is that while deciding the application under Order IX Rule 13 of C.P.C. the conduct of the defendant should be seen relating to absence on a particular date when an order was passed by the trial court to proceed ex parte. Relevant portion from the Apex Court judgment of the G. P. Srivastava’s case is reproduced hereunder : “Under Order IX Rule 13, C.P.C. an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any ‘sufficient cause’ from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” 12. Another judgment relied upon by the petitioners in Sushil Kumar Sabharwal v. Gurpreet Singh and others, 2002 (2) AWC 1600 (SC) : (2002) 5 SCC 377 . In this case the Supreme Court deprecated the rejection of the application moved by a party under Order IX Rule 13 of C.P.C. casually by the Court and held that where valuable right of the party is involved, the Court should ensure that the rejection of the application under Order IX Rule 13 of C.P.C. may not result into the failure of justice. Relevant portion of the Apex Court judgment in Sushil Kumar Sabharwal’s (supra) case is reproduced hereunder : “The provision contained in Order IX Rule 6, C.P.C. is pertinent. It contemplates three situations when on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the Court depending on the given situation. The three situations are : (i) when summons duly served; (ii) when summons not duly served ; and (iii) when summons served but not in due time. The three situations are : (i) when summons duly served; (ii) when summons not duly served ; and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte. The provision casts an obligation on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being “proved” that the summons was duly served when and when alone, the Court is conferred with a discretion to make an order that the suit be heard ex parte, The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the Court to satisfy itself on the service of summons. Any default or casual approach on the part of the Court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex parte decree or proceedings in the suit, wherein he was deprived of hearing for no fault of his. If only the trial court would have been conscious of its obligation cast on it by Order IX Rule 6, C.P.C. the case would not have proceeded ex parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation. 13. Be that as it may, we are satisfied that the summons was not served on the defendant-appellant. He did not have an opportunity of appearing in the trial court and contesting the suit on merits. The trial court and the High Court have committed a serious error of law resulting in failure of justice by refusing to set aside the ex parte decree.” 13. Learned counsel for the petitioners has relied upon another case in 1978 ARC 935 and submitted that the revisional court was having no jurisdiction to set aside the order passed by the trial court while exercising the revisional jurisdiction. Learned counsel for the petitioners has relied upon another case in 1978 ARC 935 and submitted that the revisional court was having no jurisdiction to set aside the order passed by the trial court while exercising the revisional jurisdiction. On the other hand the learned counsel for the plaintiff/opposite party No. 2 relied upon the judgment in 1981 LCD 306 and 1986 ALJ 1071 and submitted that the irregularity in process cannot be ground to set aside the ex parte decree. 14. In view of the law discussed hereinabove, laid down by the Apex Court judgment cited by the learned counsel for the opposite party does not come to extend any help to the opposite party. In view of the above, a writ of certiorari is issued quashing the impugned order dated 12.1.1985 passed by District Judge, Gonda, with all consequential benefits. The parties shall appear before the trial court on 26.5.2004 and trial court shall proceed and decide the suit expeditiously in accordance to law preferably within a period of one year from the date of receipt of certified copy of this judgment. The trial court shall not adjourn the case except on account of strong reason and shall proceed by fixing the short dates with reasoned order. 15. Subject to above, the writ petition is allowed. No cost. 16. Certified copy of this judgment shall be filed by the counsel for the petitioners in the trial court within two weeks from today. Certified copy of this judgment shall be given to the learned counsel for the petitioners on the payment of usual charges, within three days.