JUDGMENT : JYOTI SARAN, J.:–This appeal under Order XLIII rule 1(d) of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) is directed against the order dated 20.11.1995 passed by the learned Sub-Judge 1st, Patna in Misc. Case No.62 of 1993, whereby the miscellaneous case filed by the appellant under Order-IX rule 13 read with section 151 of the Code has been dismissed. 2. Facts of the case briefly stated leading to the miscellaneous case is that a suit bearing T.S. No.36 of 1991 was filed by the plaintiff respondent nos.1 and 2 as against the respondent nos.3 to 6, who were impleaded as defendant nos.1 to 4 and the appellant herein impleaded as defendant no.5, seeking to declare the sale deed dated 26/27.6.1987 executed by the defendant no.5-appellant in favour of defendants 1st set who are respondents 2nd set herein as illegal, void, inoperative and not binding on the plaintiffs. The suit was admitted and summons were issued. As per the order impugned, the defendants did not choose to appear and hence it led to ex-parte judgment and decree dated 10.9.1993 passed in Title Suit No.36 of 1991. The defendants upon gathering knowledge about the ex-parte decree filed the application in question giving rise to Misc. Case No.62 of 1993 under Order IX rule 13 read with section 151 of the Code and which has been dismissed by the judgment and order impugned dated 20.11.1995 and hence this appeal. 3. I have heard Mr. Shashi Shekhar Dwivedi, learned senior counsel appearing on behalf of the appellant, Mr.Sanjay Kumar Ojha on behalf of the some of the substituted heirs of deceased plaintiff- respondent no.2A being the wife and daughter of deceased plaintiff no.2 and Mr. Kamal Nayan Choubey, learned senior counsel appearing for another set of substituted heir of deceased respondent no.2 exercising her right of substitution on the basis of a power of attorney. 4. This Court in its order passed on 22.11.2013 has already clarified that it has not delved into the issue as to who would be the rightful legal representative of deceased respondent no.2A and the prayer for substitution is being allowed only for the purpose of pursuing the present appeal with a view to its disposal. It has further been clarified that the contesting parties can take recourse to appropriate proceeding before an appropriate forum for deciding this issue. 5. It has further been clarified that the contesting parties can take recourse to appropriate proceeding before an appropriate forum for deciding this issue. 5. Adverting back to the matter in issue it has been the contention of Mr. Dwivedi in a very precise manner that in absence of satisfaction of service of notice in the light of statutory provisions underlying Order-V more particularly rules 17 to 20 of the Code it undisputedly reflects non-service of valid notice on the appellants and in which view of the matter the judgment and decree impugned as well as the ex-parte decree cannot be upheld. With reference to the order-sheet of the title suit which forms part of the lower court records summoned in the present appeal, it was submitted by Mr. Dwivedi that the suit was filed on 15.1.1991 and under the orders of the court dated 1.5.1991 requisites etc. were to be filed under both processes. Again under the order of the court on 26.9.1991 summons were issued. The order sheet dated 28.11.1991/28.2.1991 shows that whereas notice on defendant nos.1 to 4 under both processes remained unserved, the service of notice on defendant no.5 who is the appellant herein and the defendant no.6, was awaited. It is again with reference to the order dated 8.5.1992 stated that the notices on defendant nos.1 to 4 and 6 were found validly served by the court while the defendant no.5 remained unserved and this position continued thereafter from 3.6.1992 until 11.5.1993. It is stated by Mr. Dwiedi that on the very next date, i.e. on 24.5.1993, the trial court recorded valid service of notice on all the defendants even in absence of any service report regarding defendant no.5. It is stated that thereafter the ex-parte decree was passed on 10.9.1993 and being aggrieved wherefrom, all the defendants collectively preferred Misc. Case No.62 of 1993 and which has been rejected by the judgment and order impugned. He submits that even when the defendants drew the attention of the trial court towards this serious lacuna in the service of notice, it has been rejected in a mechanical manner relying upon the evidence led by the plaintiff without having regard to the binding effect of the statutory provisions underlying Order-V of the Code. 6. The arguments of Mr. He submits that even when the defendants drew the attention of the trial court towards this serious lacuna in the service of notice, it has been rejected in a mechanical manner relying upon the evidence led by the plaintiff without having regard to the binding effect of the statutory provisions underlying Order-V of the Code. 6. The arguments of Mr. Dwivedi has been contested by the plaintiff who stands substituted by the legal heirs/legal representatives and with reference to the order recorded by the trial court on 24.5.1993 it was submitted that the satisfaction recorded by the trial court on the service of notice, is sufficient to reject the contention of the defendants. It is further with reference to the order impugned in this appeal submitted by Mr. Choubey that the court Peon having been examined and the rival contentions having been tested in the backdrop of the documentary evidence and having been rejected, this Court would not enter into the issue of sufficiency of evidence. 7. A similar contention has been advanced by Mr. Ojha, learned counsel appearing for the other side of the legal heirs. 8. I have heard learned counsel for the parties and have perused the materials on record. The provisions of Order-V of the Code relating to service of notice casts certain mandatory obligations upon the trial court and which has to be meticulously followed. Ensuring service of notice on the defendants and recording satisfaction is not an empty formality rather a duty is cast upon the trial court to satisfy itself as to whether the defendants have been unjustly deprived of a rightful hearing. Even when there has been a valid service of notice upon defendant nos.1 to 4 and 6 as recorded in the order dated 8.5.1992, the trial court has very specifically recorded the non-service of notice on the defendant no.5 who is the appellant before this Court. The matter was thereafter fixed for 3.6.1992 when yet the trial court awaited the service of notice on defendant no.5 and the same situation thereafter continued when the matter was posted on 30.6.1992, 6.8.1992 and thereafter until 11.5.1993 when identical recording regarding absence of valid service of notice on defendant no.5 was recorded. The matter was thereafter fixed for 3.6.1992 when yet the trial court awaited the service of notice on defendant no.5 and the same situation thereafter continued when the matter was posted on 30.6.1992, 6.8.1992 and thereafter until 11.5.1993 when identical recording regarding absence of valid service of notice on defendant no.5 was recorded. Even when there is nothing in the order to reflect the service of notice on defendant no.5, on the very next date fixed, i.e. 24.5.1993 the trial court has recorded that despite personal service the defendants have not appeared. Now this recording of the order by the trial court is not supported by the evidence on record nor it discusses the materials which form the basis for the trial court to record such an order regarding valid service of notice in so far as the defendant no.5 is concerned. It was argued by Mr. Choubey that even if the material forming the basis for recording such order did not find mention in the order passed on 24.5.1993, any confusion whatsoever stood clarified in the miscellaneous proceedings. I am afraid to hold there that nothing is on record of the miscellaneous case also which would fill up this serious lacuna. 9. This Court is not looking into the issue of service of notice on defendant nos.1 to 4 as against whom there is a specific order recorded regarding valid service under registered cover as well as personal notice. It is another aspect that defendant nos.1 to 4 had joined the appellant in the miscellaneous case which stood rejected and as against which order the said defendants had also preferred a separate appeal giving rise to M.A. No.86 of 1996 but the same was dismissed for default for non-compliance of the order passed on 13.12.2000 and has remained in the same status even after 13 years. 10. In so far as the defendant-5-appellant is concerned, he has pursued the matter. 10. In so far as the defendant-5-appellant is concerned, he has pursued the matter. Even when the trial court while hearing the miscellaneous case has taken note of the evidence of the peon who has deposed as O.P.W. 3 and has also taken note of Exhibits A/1 to A/4 which was served on defendant nos.1 to 4 but neither there is any documentary evidence of service of notice by postal peon on defendant no.5 nor there is any such oral evidence on his behalf in this regard and even the service report has been proved by the Advocate’s Clerk who was led as O.P.W.1 and not the peon of the court. In such circumstances and in absence of any direct evidence of recording service of notice on defendant no.5, the finding of the trial court has been most mechanical and cannot be upheld. 11. As I have observed that there is a duty cast upon the trial court to ensure service of notice and record its satisfaction on valid service and I can do no better than to reproduce the relevant portion of paragraph 12 of the judgment of the Supreme Court reported in (2002)5 SCC 377 (Sushil Kumar Sabharwal Vs. Gurpreet Singh):– “12. The provision contained in Order 9 Rule 6 CPC 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. 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 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 9 rule 6 CPC, 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.” 12. The dictum of the Supreme Court as quoted hereinabove applies on all fours to the case in hand. 13. For the reasons aforementioned the judgment and order cannot be upheld and is accordingly set aside. The miscellaneous case, i.e. Misc. Case No.62 of 1993 is allowed. The judgment and decree passed by the trial court in Title Suit No.36 of 1991 is set aside and the suit is remitted to the trial court for hearing and disposal afresh in accordance with law. 14. his appeal is allowed. 15. As the suit is a very old the trial court would be well advised to dispose of the suit with utmost priority and without giving any undue adjournment to any of the parties. As the parties are in attendance before this Court, they would be well advised to co-operate in expeditious disposal of the case. 16. Let the lower court records received be returned to the court below forthwith and without any further delay. ?