JUDGMENT Hon’ble S.U. Khan, J.—Inspite of sufficient service, no one has appeared on behalf of respondent No. 3, the only contesting respondent. Heard learned counsel for the petitioner. 2. Respondent No. 3, Hari Singh instituted O.S. No. 301 of 1990 against the petitioner in Court of Civil Judge, Hapur, District Ghaziabad for specific performance of agreement for sale of land dated 4.6.1990. The plaint was filed on 11.12.1990. Summons of the suit was served upon the petitioner’s son from his previous wife. According to the petitioner after the death of his first wife he had settled at Delhi and remarried, however his son Prem Singh from his previous wife continued to reside in the village in question where the land in dispute is situate alongwith his maternal grand-parents. The suit was decreed ex parte on 4.4.1991. Defendant petitioner filed restoration application on 4.5.1992, which was registered as Misc. Case No. 23 (or 25) of 1992. The restoration application was rejected by the trial Court on 24.8.1993. Against the said order, petitioner filed Misc. Appeal No. 171 of 1993, Atar Singh v. Hari Singh. District Judge, Ghaziabad dismissed the appeal on 27.10.1993, hence this writ petition. 3. Restoration application under Order IX Rule 13, C.P.C. was accompanied by application for condonation of delay under Section-5, Limitation Act. 4. Both the Courts below held that in the agreement for sale dated 4.6.1990 and in a notice dated 12.12.1990 given by the petitioner to respondent No. 3 in connection with the agreement address of the petitioner was shown of the village, i.e. Aurangabad. It was further held that petitioner could not prove second marriage or residence at Delhi. In my opinion, both the Courts below have taken a very technical view of the matter. Second marriage was directly not in issue, hence it was not essential for the petitioner to prove that by evidence. Absolutely no reason was given as to why summons of the suit was served upon the son of the petitioner and not upon the petitioner. Under Order V Rule 12, C.P.C. it is provided that: “Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.” 5. Under Order V Rule 12, C.P.C. it is provided that: “Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.” 5. According to Order V Rule 15, C.P.C., “service upon adult member of the family is permissible only when he is absent from his residence.” Order V Rule 15, C.P.C. is quoted below: “15. Where service may be on an adult member of defendant’s family.—Where in any suit the defendant is absent from his residence at the time when the service of summons 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 he has no agent empowered to accept serve of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.” This Rule pre-supposes long absence, hence in case of service under it (on adult member) Court must be more lenient in considering restoration application. 6. Defendant No. 3 had pleaded that under the agreement he had paid Rs. 20,000/- to the defendant petitioner. 7. Accordingly, writ petition is allowed. Both the impugned orders are set aside and the restoration application is allowed on the following conditions: (1) Petitioner shall appear before the trial Court alongwith certified copy of this judgment after serving photostat copy of the same upon the learned counsel, who was appearing before the trial Court for respondent No. 3, if possible, on 22.11.2010. If the learned counsel, who was appearing for respondent is not available or refuses to accept the copy of this judgment, then the trial Court shall at the cost of the petitioner send notice alongwith copy of this judgment to plaintiff respondent No. 3 fixing a date within a month for hearing of the suit. (2) On 22.11.2010, petitioner shall also file written statement. (3) Petitioner shall deposit cost of Rs. 25,000/- on 22.11.2010 before the trial Court to be paid to respondent No. 3. In case of default in compliance of any of these conditions, this writ petition shall be deemed to have been dismissed. —————