JUDGMENT 1. - This petition has been filed against the order dated 16th April, 2012 passed by the Additional District Judge, No.7, Jaipur Metropolitan, Jaipur in Civil Misc. Appeal No. 26/2012, wherein the learned Appellate Court has upheld an order dated 10th January, 2012 passed by the Additional Civil Judge (Jr. Division) No.2, Jaipur Metropolitan, Jaipur dismissing the application under Order 9, Rule 13 read with Section 151 of CPC qua its ex-parte decree dated 7th August, 1996 as filed by the petitioner. 2. The facts of the case are that the respondent no.3-plaintiff Smt. Shashi Prabha Tiwadi (hereinafter plaintiff) laid a suit for eviction on 24th November, 1995 against the petitioner-defendant Nawal Kishore Bhageria (hereinafter defendant) on four grounds based on (i) reasonable and bona fide necessity, (ii) availability of alternate accommodation with the defendant, (iii) non-user of the tenanted premises by the defendant and (iv) comparative hardship in favour of the plaintiff. Summons for defendants were issued on 24th January, 1996. These summons were however served on 25th January, 1996 on the daughter-in-law of the defendant Nawal Kishore Bhageria namely Anju/Anjula in terms of the provisions of Order 5, Rule 15 of CPC. However, on the file of the trial court, proof of service of notice was taken on 15th February, 1996, whereupon none having appeared in spite of service of summons, ex-parte proceedings were drawn against the defendant. Thereafter, the suit for eviction was proceeded with, in the course whereof, the plaintiff moved an application under Order 6, Rule 17 of CPC seeking to add the ground of material alteration. The application for amendment was allowed on 25th April, 1996. The matter, thereafter was taken up from time to time by the trial court and finally on 7th August, 1996, an ex-parte decree came to be passed against the defendant on the ground of reasonable and bona fide necessity of the landlord. Other grounds agitated by the plaintiff in the suit such as availability of alternate accommodation with the defendant, non-user of the tenanted premises by the defendant, comparative hardship in favour of the plaintiff and material alteration were found wanting on evidence and hence, unproved. 3. On 14th October, 1996, the plaintiff filed an application for execution of the ex-parte decree dated 7th August, 1996. 3. On 14th October, 1996, the plaintiff filed an application for execution of the ex-parte decree dated 7th August, 1996. A warrant of possession was issued by the trial court on 14th November, 1996, consequent to which the plaintiff is now in partial possession of the tenanted premises. A portion of the tenanted premises, however, continues to remain with the tenant- defendant - disputed circumstances notwithstanding. 4. The defendant, thereupon moved an application before the court of Civil Judge (Jr. Division) No.2, Jaipur Metropolitan, Jaipur under Order 9, Rule 13 read with Section 151 of CPC for setting aside the ex-parte decree dated 7th August, 1996. The ground was that summons in the suit were not duly served on him consequent to which he could not appear to defend the suit for eviction. The case in support of the application aforesaid set up by the defendant was that the purported service on his daughter-in-law allegedly staying with him and stated to be available at the tenanted premises C-64, Sarojani Marg, C-Scheme, Jaipur on 25th January, 1996 was collusive and fraudulent - the Process Server recording the factum of service of the summons on the defendant's daughter-in-law being wholly false in view of the fact that the defendant's daughter-in-law was away from Jaipur for the whole of January, 1996 and at her parental home in Muzaffer Nagar during the period. It was also stated that even otherwise the purported service of the summons was vitiated in view of the fact that no service has been effected on the defendant on his second address recorded in the plaint as Village Pasoond, District Rajsamand. It was thus, prayed that the ex-parte decree dated 7th August, 1996 be set aside and the suit for eviction before the trial court be restored to its original number to be re-tried after the defendant being giving an opportunity of defending the case. 5. In reply to the application under Order 9, Rule 13 of CPC, it was submitted by the plaintiff that the defendant was duly served in terms of the provisions of Order 5, Rule 15 of CPC, inasmuch as his daughter-in-law residing with him had been served by the Process Server after the process server had first sought out the defendant and found him unavailable. It was stated that the factum of service of summons on the daughter-in-law living jointly alongwith her husband and children with the defendant was conclusively established from the receipt of the summons duly signed by her. The further case of the plaintiff was that in terms of the second proviso to Order 9, Rule 13 of CPC, even if an irregularity could be found in the service of summons on the daughter-in-law as alleged, it could not furnish any ground for setting aside the ex-parte decree. The plaintiff, further stated that even while the said application was founded upon alleged fraudulent service on the defendant's daughter-in-law, no affidavit of the daughter-in-law in support of the averment had been filed. The plaintiff stated that the report of the Process Server - an Officer of the Court - could not be negated on a bald denial, unsupported by the best evidence available with the defendant setting up a case of summons not being duly served. 6. Counsel for the plaintiff further pointed out that there had been nothing hasty, irregular or odd in the proceedings in the suit for eviction inasmuch as between the laying of the suit and passing of the ex-parte decree, the matter had come up before the trial court on 27-11-1995, 25-01-1996, 8-02-1996, 15-02-1996, 25-04-1996, 08-05-1996, 18-05-1996, 31-05-1996, 18-07-1996 and 27-07-1996. The ex-parte decree was passed only on 7th August, 1996. It is stated that subsequent to passing of an ex-parte decree for eviction, on the plaintiff's application for execution filed on 14th October, 1996, a warrant of possession was issued, whereupon the possession of the tenanted premises in execution of the decree was taken on 14th November, 1996. It was submitted that thereafter in an application filed before the executing court on 15th November, 1996, the plaintiff had informed the court that the defendant - judgment debtor had taken his goods from the tenanted premises in Truck No. HNG 2605. Subsequently, however, in the night of 18th November, 1996, the defendant had broken into two rooms with an attached latrine, bath and garage of the earlier tenanted portion unauthorizedly, of which the court was informed by the plaintiff on 19th November, 1996. Criminal proceedings were also initiated against the tenant-defendant under Section 457 of IPC for ingressing unauthorizedly into the plaintiff's property. Criminal proceedings were also initiated against the tenant-defendant under Section 457 of IPC for ingressing unauthorizedly into the plaintiff's property. Submitting that the ex-parte decree was passed in accordance with the law in view of the defendant's absence from the court in spite of service, it was prayed that the application filed under Order 9, Rule 13 of CPC be dismissed. 7. On the matter coming up before the learned trial court, the trial court concluded that from the evidence laid before it, in the course of adjudication of the application under Order 9, Rule 13 of CPC, the defendant had been unable to prove that the summons in the suit for eviction were not duly served on him with reference to Order 5, Rule 15 of CPC. In this view of the matter, the application under Order 9, Rule 13 of CPC was dismissed on 10th January, 2012. The order dated 10th January, 2012 was challenged in an appeal (Civil Misc. Appeal No. 26/2012) before the court of Additional District Judge, No.7, Jaipur Metropolitan, Jaipur. Vide order dated 16th April, 2012, the said appeal has been dismissed. 8. Mr. B.S. Chhaba, learned counsel appearing for the defendant has submitted that the orders dated 16th April, 2012 and 7th August, 1996 are wholly perverse, illegal and liable to be quashed and set aside by this Court in the exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. It has been submitted that service on the daughter-in-law of the defendant (now the petitioner) under Order 5, Rule 15 of CPC was fraudulent, as in fact, she was not even in Jaipur on 25th January, 1996, when service was alleged to have been made on her on his behalf and her signatures obtained. It was submitted that for the whole of the month of January, 1996, the defendant's daughter-in-law had gone to visit her parental home in Muzaffer Nagar and her purported signature, evidencing the receipt of the summons of the court on 25th January, 1996, were forged and an outcome of collusion between the Process Server and the plaintiff. It was submitted that for the whole of the month of January, 1996, the defendant's daughter-in-law had gone to visit her parental home in Muzaffer Nagar and her purported signature, evidencing the receipt of the summons of the court on 25th January, 1996, were forged and an outcome of collusion between the Process Server and the plaintiff. It was also submitted that even otherwise, it was incumbent upon the trial court following the amendment to the plaint at the instance of the plaintiff on 25th April, 2006, to have re-issued summons in the suit to the defendant and the trial court having failed to do so, the subsequent ex-parte proceedings were vitiated. It was submitted that consequently, the courts below ought to have held that the summons in the suit were not duly served on the defendant and the ex-parte decree dated 7th August, 1996 having been unlawfully obtained deserved to be set aside and the possession of the whole of the tenanted premises restored to the defendant. 9. In support of his case, the learned counsel for the defendant relied upon the judgment of the Allahabad High Court in the case of Kishore Kumar Arora v. Harvindar Singh & Others, reported in 2011 Law Suit (All) 2378 to contend that the court before assuming that the summons had been duly served with reference to Order 5, Rule 15 of CPC, was required to satisfy itself that three conditions have been complied with - (i) that before service of summons on the adult member of the family there has to be an effort on the part of the process server to serve the same on the defendant; (ii) that he must record his satisfaction that the defendant is not likely to be found at his residence within reasonable time and; (iii) that there is no authorised agent to receive the summons on behalf of the defendants. It is submitted that the Allahabad High Court in the aforesaid has held that if any of the aforesaid three conditions were not satisfied, no proper service under Order 5, Rule 15 of CPC could be found. Reliance has also been placed on a decision reported in the case of Ajhar Ali & Ors. v. Saidur Rahman @ Saidul Islam & Anr., reported in 2011 Law Suit (Gau) 512 , wherein the Gauhati High Court has reiterated the same view. Reliance has also been placed on a decision reported in the case of Ajhar Ali & Ors. v. Saidur Rahman @ Saidul Islam & Anr., reported in 2011 Law Suit (Gau) 512 , wherein the Gauhati High Court has reiterated the same view. Further reliance has been placed by the counsel for the defendant on the judgment of the Himachal Pradesh High Court in the case of Jagat Ram & Anr. v. Ravi Kant & Ors., reported in 2010 Law Suit (HP) 186 for the same preposition that where the pre-conditions for service of summons of a court on a defendant through an adult member of his family have not been satisfied, such service on the adult family member (in that case daughter-in-law/wife) may not be treated as proper service. Finally reliance has been placed by the counsel on the judgment of the Hon'ble Rajasthan High Court in the case of Ladu Ram v. Board of Revenue & Ors., reported in 2007 (3) WLN 80 wherein this Court has also held that service on an adult member of the family of the defendant ought to be made only subsequent to the satisfaction of the Process Server that the defendant was absent from his residence at the time service of summons were sought to be made on him and also that there was no likelihood of the defendant being found at his residence within reasonable time. Relying on the aforesaid judgments, counsel for the defendant submitted that service on the daughter-in-law, even if made, but without the requisite satisfaction of the Process Server as in the present case was no service in the eye of law. Counsel has further submitted that summons in the suit for eviction were issued by the trial court on 27th November, 1995 and yet it was only on 24th January, 1996 that the summons were taken by the Process Server and sought to be served on the defendant on 25th January, 1996. It is submitted that this aspect of the matter should also caution the court with regard to the collusive nature of the purported service of the defendant allegedly through his daughter-in-law. It is submitted that this aspect of the matter should also caution the court with regard to the collusive nature of the purported service of the defendant allegedly through his daughter-in-law. Emphasising the absence of noting by the Process Server pertaining to the defendant not being available for service of summons of the court and not being likely to be found within reasonable time for effecting service, it has been submitted that the purported service dated 25th January, 1996 on the daughter-in-law of the defendant was not in compliance of Order 5, Rule 15 of CPC. It is submitted that thus, the courts below ought to have concluded that the summons in the suit for eviction laid by the plaintiff were not duly served on the defendant and entitled the defendant to an order setting aside the ex-parte decree dated 7th August, 1996 under Order 9, Rule 13 of CPC. 10. Per Contra, Mr. Ajeet Bhandari counsel appearing for the plaintiff, would submit that the gravamen of the defendant's case was/is with regard to the alleged non-service on his daughter-in-law on 25th January, 1996 and hence, the non-applicability of Order 5, Rule 15 of CPC in the present case for treating service to be complete. He submits that the burden of overcoming the record of the trial court on summons having been served in the suit for eviction was on the defendant and mere bald denial by the defendant was wholly insufficient and of no avail. It is submitted that Section 114 Illustration (e) of the Indian Evident Act, 1872, provides for a presumption of regularity of judicial and official acts. The Process Server attached to the trial court was an Officer of the Court and to overcome the report submitted by the Process Server with regard to service of summons on the daughter-in-law of defendant and accepted by the trial court, the defendant ought to have discharged the burden of rebuttal by bringing in the best evidence. It was thus, incumbent upon the defendant to bring on record the rebuttal evidence of his daughter-in-law, which was not done. It was thus, incumbent upon the defendant to bring on record the rebuttal evidence of his daughter-in-law, which was not done. It is submitted that it was reasonably established even from the evidence of the defendant himself before the learned trial court that his daughter-in-law did indeed reside with him in the tenanted premises where the summons in the suit for eviction were served upon her by the Process Server of the court tantamounting to service in law on the defendant. Counsel has submitted that consequently, the courts below had not erred in concluding that the service of summons having been made on the daughter-in-law of the defendant residing with him, it was due service with reference to Order 5, Rule 15 of CPC. 11. Counsel has further submitted that the defendant cannot make any capital from the purported lacuna in the non-recording of the satisfaction of the Process Server (while effecting service on the defendant's daughter-in-law) that not only was the defendant not available when the service of summons was sought to be made on him but also that there was no reasonable likelihood of the defendant being found at his residence within a reasonable time. It is submitted that the second proviso to Order 9, Rule 13 of CPC saves such a situation in providing 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." Counsel submits that the factum of service of the summons in the suit for eviction on the daughter-in-law of the defendant having been established from the record of the case and this having remained unshaken in view of the failure of the defendant to examine his daughter-in-law before the trial court, assuming that there was a failure of the Process Server to record his satisfaction as warranted under Order 5, Rule 15 of CPC, it would not supply a ground for setting aside the ex-parte decree dated 7th August, 1996. As such setting aside is prohibited by an express provision of law. 12. As such setting aside is prohibited by an express provision of law. 12. In respect of authorities cited by the counsel for the defendant, the counsel for the plaintiff has submitted that the judgments relied upon by the counsel for the defendant have not taken into reckoning the effect of the second proviso to Order 9, Rule 13. It is submitted that the requirement under Order 5, Rule 15 of CPC with regard to the recording of satisfaction of the Process Server before serving summons on an adult member of the family of the defendant is only in the nature of procedure, deviation wherefrom is of no consequence in situations where the factum of service stands proved. It is submitted that the case established before the learned trial court was that the defendant had been served through his resident daughter-in-law who had signed the receipt. He submits that the defendant did not rebut this fact by the best available evidence of his daughter-in-law. It is submitted that the factum of notice of the date of hearing in the suit thus remaining unshaken, an alleged irregularity in the service of summons would be of no consequence. Reference in this regard has been made to the judgment of the Division Bench of the Allahabad High Court in the case of Raghubar Sahai Bhatnagar v. Bhakt Sajjan, Civil Revision No. 499/1973 decided on 28th October, 1977] reported in wherein it has been held that the primary purpose of prescribing procedure for service of summons is to ensure that the defendant receives the information and knowledge of the date of hearing of the suit and if the procedure prescribed is not strictly followed but if it is established that the defendant had knowledge of the plaintiff's claim as also the date of hearing, in view of the second proviso to Order 9, Rule 13 of CPC, an ex-parte decree could not be set aside. Noting the difference between an irregularity and an illegality, the Hon'ble Division Bench of the Allahabad High Court in the aforesaid case has held that an irregularity contemplates a defect in procedure and non-compliance of the prescribed formality which may not be of substantial nature. Illegality, on the other hand connotes contravention of statute which may make the action void. Noting the difference between an irregularity and an illegality, the Hon'ble Division Bench of the Allahabad High Court in the aforesaid case has held that an irregularity contemplates a defect in procedure and non-compliance of the prescribed formality which may not be of substantial nature. Illegality, on the other hand connotes contravention of statute which may make the action void. In this view of matter, the Division Bench rightly held that the defect in following procedure prescribed for the service of summons under the Civil Procedure Code would only be an irregularity for reason of which an ex-parte decree could not be set aside. I am in complete agreement with the enunciation aforesaid. 13. Counsel for the plaintiff has further relied upon the judgment of the Hon'ble Supreme Court in the case of Parimal v. Veena @ Bharti, reported in (2011) 3 SCC 545 , wherein the Hon'ble Supreme Court has held that the second proviso to Order 9, Rule 13 of CPC makes it obligatory for the Appellate Court not to interfere with the ex-parte decree, on the mere irregularity in the effecting of service. Counsel has further submitted that in the case of Parimal (supra), the Hon'ble Supreme Court has also held that to overcome a presumption of service in law, a mere bald statement by the defendant is of no avail and in such a situation where a presumption in law with regard to service operates to the benefit of the plaintiff [in that case under Section 114 Illustration (f)] a specific attempt has to be made and evidence led by the defendant applicant to establish fraud and collusion between the plaintiff and the Process Server allegedly in collusion for fraudulently effecting service to render him ex-parte in the suit. Counsel has submitted that Section 114 Illustration (e) of the Indian Evidence Act, provides that the court may presume that judicial and officials acts have been regularly performed. He submits that the Process Server is an officer of the court and his act of serving a defendant under order of the court is thus, official. Submission is that consequently, the report of the Process Server as required that the service of summons in the suit for eviction were served on the daughter-in-law of the defendant and her signatures obtained is conclusive unless shaken by rebuttal evidence of the requisite standard. Submission is that consequently, the report of the Process Server as required that the service of summons in the suit for eviction were served on the daughter-in-law of the defendant and her signatures obtained is conclusive unless shaken by rebuttal evidence of the requisite standard. It is submitted that the best manner of overcoming the presumption and validity of service based on the report of the Process Server was the evidence of the daughter-in-law of the defendant which admittedly was not led before the trial court. Counsel submits that in this view of the matter, the courts below have not erred in holding that the defendant was served with reference to Order 5, Rule 15 of CPC, had notice of the date of hearing therein and consequently, the ex-parte proceedings against him were taken in accordance with law. It is submitted that there is thus no good ground for this court to interfere with the order of the courts below under Article 227 of the Constitution of India. 14. I have heard the learned counsel for the petitioner and the respondent, perused the writ petition as also the impugned orders. 15. The moot question before this court is as to whether the defendant was served as provided under Order 5, Rule 15 of CPC? The secondary question before this Court would be as to whether service on the daughter-in-law of the defendant could be vitiated for failure of the Process Server to record his satisfaction that at the time summons were sought to be served the defendant was absent from his residence and that there was no likelihood of his being found at the residence within the reasonable time for service to be effected. 16. In my considered opinion, in the facts of the case, the present petition has to fail and be dismissed. For one, the scope of this Court in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India is extremely narrow as detailed by the Hon'ble Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai, reported in (2003) 6 SCC 675 and Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 . 17. v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 . 17. On the merits of the matter, to my mind, the orders of the courts below are neither perverse nor suffer from any misdirection of law and the conclusions on the fact of service arrived at by the courts below are based on due appreciation of the evidence led before the trial court by the respective parties on the application under Order 9, Rule 13 of CPC. I am of the considered opinion that the defendant was unable to discharge the burden on him to rebut the presumption in law of due service having been effected on the basis of the report of the Process Server buttressed by the presumption under Section 114 Illustration (e) of the Indian Evidence Act. The defendant failed to bring in the best evidence of his daughter-in-law for denying her signature on the receipt of the summons evidencing the service of summons on her on 25th January, 1996. From the evidence of the defendant, it was reasonably established that the daughter-in-law indeed resided in the premises along with the defendant, where she was served on 25th January, 1996. As held by the Hon'ble Supreme Court in the case of Parimal (supra) a mere bald denial of the presumption in law was insufficient and it was incumbent upon the defendant seeking to rebut a presumption in law and fact of service to lead the best evidence for rebuttal. This was admittedly not done as recorded here-in-above. This court in the case of Ladu Ram (supra) in Para-6 held that a son or unmarried daughter, wife or daughter-in-law or the dependents of the male are all members of the family of the person concerned. It thus, stands established under the authority of this Court that the daughter-in-law of the defendant would be a member of his family. That being so, service on the daughter-in-law of the defendant in terms of Order 5, Rule 15 of CPC was due service. In my considered opinion, the defendant in law will be attributed to have had knowledge of the date of hearing in the suit following service on his daughter-in-law and his absence from the proceedings in the suit was on at his own peril, consequent to which the ex-parte proceedings cannot be stated to have been taken illegally, arbitrarily nor can the ex-parte decree be set aside. Aside of the above, as held earlier, non-recording of the satisfaction of the Process Server in terms of Order 5, Rule 15 of CPC with regard to absence of the defendant or unlikelihood of his presence within reasonable time to effect service on him would tantamount to only an irregularity in service, which would be saved by the second proviso of Order 9, Rule 13 of CPC. The courts below, in my considered opinion, therefore, have not committed any jurisdictional error nor misdirected themselves in law in dismissing the application under Order 9, Rule 13 of CPC for setting aside the ex-parte decree dated 7th August, 1996. 18. I therefore, find no force in the petition and as such stands dismissed.Petition dismissed. *******