JUDGMENT Dube, J. -- 1. Feeling aggrieved by the order dated 11.5.2009 passed in MJC No.12/08 (Smt. Usha Singh alias Deepa Vs. Brijendra Singh) by the Family Court, Gwalior by which the respondent application under Order IX rule 13 read with section 151 of Code Civil Procedure,1908 for setting aside the ex parte judgment and decree of divorce dated 3.10.2007 passed in Civil Suit No.202-A/07 HMA, has been allowed, the appellant/plaintiff/husband has filed this first appeal under section 19 of the Family Courts Act,1984. 2. The respondent/defendant/wife moved an application under Order IX rule 13 read with section 151 of Code of Civil Procedure, 1908 inter alia pleading that she was not served in accordance with law, therefore, ex parte decree passed against her deserves to be set aside. 3. The appellant/plaintiff/respondent contested the case and denied the averments made in the application. 4. The respondent-wife examined herself as AW1 and witnesses, Baijnath Singh (AW2), Process Writer, Kumari Uma Bhairavi (AW3), Family Court’s Peon, Devendra Shrivastava (AW4) and Family Court’s Clerk, Keval Shrivastava (AW5) in support of the application. The appellant-husband filed an affidavit of Smt. Manjula Goswami under Order XVIII rule 4 of CPC, but the said witness was not appeared in the witness-box for cross-examination. The learned Court below after hearing the arguments vide its order dated 11.5.2009 allowed the application of the respondent-wife and set aside the ex parte judgment and decree of divorce dated 3.10.2007 passed in Civil Suit No.202-A/2007 HMA. 5. The appellant-respondent filed a review application against the impugned order dated 11.5.2009. The learned Court below vide its order dated 24.7.2009 dismissed the review application. 6. At the time of hearing, the learned senior counsel appearing for the appellant, Shri H.D. Gupta submitted that the summons was issued and duly served upon the respondent. The respondent-wife refused to accept the summons, therefore, the process server made a note of her refusal on summons and returned to the Court. The service of summons was duly effected upon the defendant for 29.8.2007 but the respondent deliberately did not appear before the Court, therefore, the Court below proceeded ex parte against the respondent and passed the ex parte judgment and decree of divorce. The service of summons was duly effected upon the defendant for 29.8.2007 but the respondent deliberately did not appear before the Court, therefore, the Court below proceeded ex parte against the respondent and passed the ex parte judgment and decree of divorce. It is further submitted that the respondent was fully aware of the pendency of the civil suit as well as the ex parte judgment and decree but she never applied to set aside the same earlier because she did not want to live with the appellant. It is only after re-marriage of the appellant on 18.4.2008, the respondent filed an application to set aside the ex parte decree on 24.4.2008 to harass the appellant as well as his newly wedded and innocent wife. Learned senior counsel categorically submitted that the appellant contacted the second marriage six months after passing of the ex parte decree by complying the provisions of section 15 of the Hindu Marriage Act. Now he is living with his newly wedded wife and one child has also been born out of the wedlock. In these circumstances, the application for setting aside the ex parte decree was not maintainable. Learned senior counsel in support of his contention has placed reliance on the decision of the Rajasthan High Court in case of Surendra Kumar v. Kiran Devi [AIR 1997 Rajasthan 63 (SB)]. 7. The learned senior counsel further submitted that the ex parte decree cannot be set aside merely on the ground there has been irregularity in service of summons. In this regard, he has placed reliancfe on the decisions rendered by a Division Bench of this Court in the case of Ramnarayan v. State Bank of Indore [ 2002(2) MPLJ 585 ], and Supreme Court in the case of Parimal v. Veena alias Bharti [ (2011)3 SCC 545 ]. 8. In response, Shri M.B. Mangal, learned counsel appearing on behalf of the respondent forcefully submitted that neither the summons has been served upon the respondent nor the process server came to her place as she was continuously out of Gwalior city from 13.10.2006 to 3.10.2007. The appellant managed the endorsement of refusal on the summons in collusion with the process server. There were several infirmities and lapses regarding issuing of process as well as in service of summons. The appellant managed the endorsement of refusal on the summons in collusion with the process server. There were several infirmities and lapses regarding issuing of process as well as in service of summons. It is further submitted that the mandatory provision of Order V rule 17 CPC, has not been followed and on the date fixed for hearing, i.e., 29.8.2007, the Presiding Officer was on leave. Therefore, the case was adjourned for 24.9.2007. Party’s absence on 24.9.2007 did not give jurisdiction to proceed ex parte. In support of his contention, learned counsel has placed reliance on the fololowintg decisions : (i) Electric Construction and Equipment Co.Ltd. (M/s.) v. Permali Wallace Ltd. [ 1991 JLJ 45 ]; (ii) Daulatram v. Ishwari Prasad [1992(1) MPJR SN 28; (iii) Laliya v. Bhagwan [ 2000(1) JLJ 95 ]; (iv) Sushil Kumar Sabharwal v. Gurpreet Singh [ (2002)5 SCC 377 ]; (v) Rooprani v. Prem Singh [ 2008(I) MPWN 40 = 2008(1) MPLJ 150 ]; and (vi) Sushila Bai w/o Ram Nihore Patel v. Ram Nihore Jagatdhari Prasad Patel [ 1991 MPLJ 329 ]. 9. By placing reliance on the decisions in the case of Smt. Kajal Chowdhury v. Dilip Chowdhury [AIR 2004 Calcutta 113], Tejinder Kaur v. Gurmit Singh [ AIR 1988 SC 839 ], and Sadan Kumar Chaurasia v. Indira Bai Sadan Kumar [1977(1) MPLJ 124], it has been argued by the learned counsel for the respondent that merely because re-marriage and born a child from second marriage, the application under Order IX rule 13 of CPC will not become infructuous. 10. Having heard learned counsel for the parties and perusal of the record, we are of the considered view that this appeal deserves to be dismissed. 11. It is borne out from the record of the learned Court below that on 17.5.2007, the plaintiff-husband filed a civil suit against the defendant-wife under section 13 of the Hindu Marriage Act, 1955 for decree of divorce. The Court ordered to issue of summons by registered post on payment of process fee within two days, fixing the case for 28.6.2007. On 28.6.2007, the plaintiff was absent and as none was appeared on his behalf, the Court noted that the process was not issued since the process fee and registered post charges were not paid. The Court ordered to issue of summons by registered post on payment of process fee within two days, fixing the case for 28.6.2007. On 28.6.2007, the plaintiff was absent and as none was appeared on his behalf, the Court noted that the process was not issued since the process fee and registered post charges were not paid. The case was however adjourned for 24.7.2007 with a direction for issuance of summons on payment of process fee and registered post charges within two days. On 24.7.2007, the plaintiff was absent again and the process was also not issued on account of non-payment of process fee and registered post charges. The case was again adjourned for 29.8.2007 with a direction for issuance of summons on payment of process fee and registered post charges within two days. On 29.8.2007, both the parties were absent. The Presiding Officer was also not present as he was on leave, the case was adjourned for 24.9.2007. 12. On 24.9.2007, the plaintiff was absent, the defendant was also not present. The Court proceeded ex parte against the defendant. The order-sheet runs as under : “wy.~.w®®| vkosnu vuqifLFkrA vukosfndk vuqifLFkrA izdj.k esa vukosfndk dks ckj&ckj iqdkj yxokbZ xbZ] iqdkj i’pkr~ vukosfndk vuqifLFkr gS] izdj.k esa vukosfndk ds fo#) tkjh leal 29-8-2007 dks okfil izkIr gqvk Fkk] ftls izdj.k esa layXu fd;k x;k gS] mDr leal dk voyksdu fd;k x;kA vkt vukosfndk fcuk fdlh mfpr dkj.k ds vuqifLFkr gS] vr% vukosfndk dh vuqifLFkfr ds dkj.k izdj.k vukosfndk ds fo#) ,di{kh; fd;k tkrk gSA vkxkeh fnukad ij vkosnd viuh leLr lk{; mifLFkr j[ksaA izdj.k esa vkosnd dh vksj ls vf/koDrk Jherh eatqyk xksLokeh us O;Dr fd fd] vkosnu NqV~Vh u feyus ds dkj.k vkt U;k;ky; esa mifLFkr ugha gks ik;k gs] vkosnd dks vkxkeh fnukad ij vko’;d :i ls lk{; lfgr mifLFkr j[kk tkosA izdj.k fnukad 3-10-2007 dks j[kk tkosA lgh Jherh foeyk tSu iz/kku U;k;k/kh’k dqVqac U;k;ky;] Xokfy;j ¼e-iz-½** 13. On 3.10.2007, ex parte evidence of the plaintiff was taken on record and the Court pronounced the ex parte judgment and decree on the same date, i.e., 3.10.2007. 14. On 24.4.2008, the defendant-wife filed an application under Order IX rule 13 read with section 151 of CPC to set aside the ex parte decree. 15. On 3.10.2007, ex parte evidence of the plaintiff was taken on record and the Court pronounced the ex parte judgment and decree on the same date, i.e., 3.10.2007. 14. On 24.4.2008, the defendant-wife filed an application under Order IX rule 13 read with section 151 of CPC to set aside the ex parte decree. 15. The defendant-wife, Usha Singh alias Deepa (AW1) has deposed that neither a notice of the case for divorce has been served on her nor any Court’s official ever come to her place and she never refused to accept the notice. She was not at all aware of the divorce case instituted by her husband. On 23.4.2008 when she came to appear in a Court Case No.158/08 HMA filed by her, Smt. Manjula Goswami, Advocate who was also counsel of her husband in one case informed her about the ex parte judgment and decree of divorce and that is the first time, she got the knowledge of the ex parte decree dated 3.10.2007. She further deposed that on being perused the original record of divorce case, she came to know that summons had been returned on 20.8.2007 with a false report of her refusal. She was continuously out of Gwalior city from October, 2006 to October, 2007 and was residing at Kanpur with her maternal grand-parents. She was also ill and under treatment of Dr. A.K. Gupta from 17.8.2007 to 21.8.2007 and she never refused to accept the summons. The evidence of AW1, Usha Singh alias Deepa gets support by the testimony of Baijnath Singh (AW2) who is father of the defendant and medical prescription papers, Exs.P-1(A), P-1(B) and P-1(C). 16. No evidence has been adduced on behalf of the plaintiff-husband to rebut the evidence of the defendant-wife. However, affidavit of one Smt. Manjula Goswami, Advocate under Order XVIII rule 4 CPC was filed on behalf of the plaintiff-husband but she was not produced in the Court for cross-examination. 17. The Court’s Peon, Devendra Shrivastava (AW4) deposed that under the orders of Court’s Nazir, he went to serve the summons, Ex.D-2 upon Uma alias Deepa at her residence No.168, Madhav Nagar, Gwalior. On being called, Uma came out from her residence. On her refusal to accept the summons, he returned the summons to the Court with his report regarding refusal to accept by Usha alias Deepa. On being called, Uma came out from her residence. On her refusal to accept the summons, he returned the summons to the Court with his report regarding refusal to accept by Usha alias Deepa. Devendra Shrivastava (AW4) has admitted that on the alleged refusal by Usha alias Deepa to accept the summons, he did not affix a copy of the summons and copy of the plaint on the wall of the premises and also he did not tender a copy of the plaint to Usha alias Deepa. He further admitted that he neither previously knew her nor get identified Usha alias Deepa by some other person. He further deposed that he alone went to serve the summons and no witness was with him at the time of service of summons. But endorsement on the back of the summons (Ex.D-2) shows that the witnesses present at the time of service have refused to put their signatures on the summons. The names of these witnesses were not even mentioned thereupon, therefore, the endorsement on the back side of summons (Ex.D-2) contradicts the testimony of Devendra Shrivastava (AW4). 18. In view of rules 17 and 18 of Order V CPC which lay down a procedure of service when the defendant refused to accept the service and the endorsement to be made by the serving official, there were several infirmities and lapses on the part of the Court’s peon/process server. Firstly, on the alleged refusal by the defendant, he did not affix a copy of the summons and the plaint on the outer door or some conspicuous place of residence of the defendant. Secondly, tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall of the residence should have been witnessed by persons who identified the defendant and her house and witnessed the procedure. The endorsement on the back of the summons (Ex.D-2) shows that the witnesses have refused to put their signatures on the summons but this endorsement on the back of summons does not support the testimony of AW4, Devendra Shrivastava but rather contradicts him. 19. The endorsement on the back of the summons (Ex.D-2) shows that the witnesses have refused to put their signatures on the summons but this endorsement on the back of summons does not support the testimony of AW4, Devendra Shrivastava but rather contradicts him. 19. The apex Court in case of Sushil Kumar Sabharwal (supra), has observed that on alleged refusal of the defendant to accept the summons, the process server failed to affix copy of the summons on the wall of the premises and his returning the summons to the Court with his endorsement on the back about defendant’s refusal, amounts to non-service of summons. In the case of Rooprani (supra), this Court while interpreting the provisions of rule 17 of Order V CPC has held as under : “7. Summons are issued in accordance with the provisions contained in Order 5 of the Code of Civil Procedure. Order 5, rule 17 of Civil Procedure Code reads as follows : 17. In the case of Rooprani (supra), this Court while interpreting the provisions of rule 17 of Order V CPC has held as under : “7. Summons are issued in accordance with the provisions contained in Order 5 of the Code of Civil Procedure. Order 5, rule 17 of Civil Procedure Code reads as follows : 17. 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 acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, [who is absent from his 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 or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.” There is a local amendment in the State of Madhya Pradesh inserted by way of following proviso to Order 5, rule 17 of the Code of Civil Procedure : “Provided that where a special service has been issued and the defendant refused to sign the acknowledgment it shall not be necessary to affix a copy as directed hereinafter.” 8. In view of the aforesaid, it is clear that refusal on the part of defendants-petitioners to accept the summons and/or to sign the acknowledgment would not amount ipso facto to due service unless a copy of summons is affixed on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business. 9. 9. In the case in hand, the summons were issued in ordinary manner and the special service was not issued at all. In the absence of special service, it was obligatory on the part of the process server to make the affixation as provided under Order 5 rule 17 of the Code of Civil Procedure. This having not been observed, the defendants-petitioners were not duly served with summons and would not have been so treated. In the absence of a valid service of summons on the defendants, the learned trial Judge had no power/jurisdiction to draw ex parte order of temporary injunction. 10. In the result, the petition succeeds and is, hereby, allowed. The impugned order contained in Annexure P-6 is, hereby, set aside. Ex parte proceedings drawn on 20.6.2006 against the defendant-petitioners are, hereby set aside, being without jurisdiction. Consequently, the order of temporary injunction passed by the learned trial Judge on 23.6.2006 is also hereby quashed. Learned trial Judge is directed to grant opportunity to the defendants-petitioners to submit reply in response to the application afresh, in accordance with law. No order as to costs.” 20. In view of the facts, we have noticed hereinabove, the testimony of defendant-wife was to be given more weightage than the testimony of Court’s peon/process server, Devendra Shrivastava (AW4). Therefore, we also discard the testimony of Devendra Shrivastava (DW4) and believe the testimony of defendant-wife [Sushil Kumar Sabharwal (supra), referred to]. 21. It has also not been disputed before us that after passing of the ex parte decree in favour of the defendant-appellant by the Family Court on 3.10.2007, the appellant-husband has contacted a second marriage after six months. In such a situation, the question arises for determination is whether the ex parte decree can be set aside and the application thereof was maintainable? 22. Rajasthan High Court in the case of Surendra Kumar (supra), has held that when second marriage is contacted, the application for setting aside the ex parte of divorce was not maintainable. However, while interpreting the provisions of sections 13 and 15 of the Hindu Marriage Act, 1955 as well as Order IX rule 13 CPC, this Court in the case of Sadan Kumar Chaurasia (supra), has held as under : “10. However, while interpreting the provisions of sections 13 and 15 of the Hindu Marriage Act, 1955 as well as Order IX rule 13 CPC, this Court in the case of Sadan Kumar Chaurasia (supra), has held as under : “10. The Supreme Court, in the matter of Tejinder Kaur v. Gurumit Singh [ AIR 1988 SC 839 ], considering the provision of section 15 of the Hindu Marriage Act, 1955, has held that a successful party in the High Court must wait for a reasonable time and make sure whether an application for special leave has been filed in the Supreme Court. The Supreme Court further held that where a decree for dissolution is passed and an appeal against it is dismissed by the High Court and the husband remarries after one month of the High Court’s order, he cannot be allowed to raise a plea that since he has remarried, special leave petition filed by the wife becomes infructuous. It was incumbent on him to have apprised himself as to whether the appeal in the High Court is still pending and, if not, whether the period for filing special leave petition to the Supreme Court has expired. 11. The Supreme Court, while overruling the preliminary objection held that despite the second marriage, taking advantage of section 15 of the Hindu Marriage Act, the special leave petition before the Supreme Court did not become infructuous and was worth consideration. 12. As observed above, if the principles underlying section 15 are to be extended to an application for special leave petition to the Supreme Court then certainly the principles underlying section 15 would be applicable to an application filed under Order 9, rule 13, Civil Procedure Code. Merely remarrying after the period prescribed under section 15, the second spouse would not be permitted to say that the application filed under Order 9, rule 13, Civil Procedure Code had become infructuous. In fact, it would be adding premium to the act of the person who secured the ex parte decree. It would otherwise be against the public policy that a person who secured the benefit under an ex parte decree be permitted to continue with the benefit of the ex parte decree if the Court is of the opinion that under the circumstances the ex parte decree can be set aside. 13. It would otherwise be against the public policy that a person who secured the benefit under an ex parte decree be permitted to continue with the benefit of the ex parte decree if the Court is of the opinion that under the circumstances the ex parte decree can be set aside. 13. Learned trial Court, in my opinion, was absolutely wrong in holding that because the wife had remarried and has given birth to a child from the second marriage, the application filed under Order 9, rule 13 had become infructuous. The appeal deserves to be allowed.” 23. From the aforesaid, it is clear that the application filed under Order IX rule 13 read with section 151 of CPC was maintainable and would not become infructuous on the ground that the plaintiff-appellant had remarried after passing of the ex parte decree for divorce. 24. The contention of learned senior counsel for the appellant regarding applicability of the second proviso to Order IX rule 13 CPC is concerned, a Division Bench of this Court in the case of Ramnarayan (supra), it has been held that ex parte decree cannot be set aside merely on the ground that there has been a irregularity in service of summons. The apex Court in its recent decision in the case of Parimal (supra), has held that an ex parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the Court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the Court. The legislature in its wisdom, made the second proviso mandatory in nature. Thus, it is not permissible for the Court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. 25. The legislature in its wisdom, made the second proviso mandatory in nature. Thus, it is not permissible for the Court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. 25. The second proviso of Order IX rule 13 of CPC provides that no Court shall set aside a decree passed ex parte merely on the ground that there has been a 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. The Court can refuse to set aside the ex parte decree if it is convinced that there was some irregularity in the service of the summons and the defendant had sufficient notice for his appearance. In the case in hand, the Court below has considered this aspect of the matter, therefore, in our considered opinion, this case was not a case of irregular service of summons, it was a case of illegality in service of the summons upon the defendant/respondent/wife. The plaintiff-husband has to prove in the Court that summons was duly served on the defendant-wife. If the plaintiff satisfies the Court that summons was in fact served in accordance with law but certain directive provision was not observed, only in such a case, the Court may on being satisfied that the defendant had sufficient time to approach the Court on the date of hearing, can refuse to set aside the ex parte decree. In the case in hand, it has not been proved by the plaintiff-appellant that the service of summons was in accordance with law, therefore, looking to the peculiar facts and circumstances of the present case, the learned Court below rightly not permitted the plaintiff-respondent to take advantage of the second proviso of Order IX rule 13 of CPC. 26. Before parting with this judgment, we would like to add that the Court before proceeding ex parte against a defendant, must cautiously see the process and the report of service of the summons and should not formally use the words that the defendant was served, but was absent. 26. Before parting with this judgment, we would like to add that the Court before proceeding ex parte against a defendant, must cautiously see the process and the report of service of the summons and should not formally use the words that the defendant was served, but was absent. The Court shall always be justified by recording cogent reasons in proceeding ex parte provided it is convinced that the defendant despite lawful service of summons and knowledge of the pendency of the proceedings had chosen to remain absent before proceeding ex parte, the Court must advert itself and follow the legal requirements regarding service of summons as provided under Order V of CPC. 27. In view of the abovesaid discussion, this appeal has no force and it is herebydismissed with costs. The respondent is entitled to costs which we quantify as Rs.5,000/- (Rupees five thousand only). .............