JUDGMENT 1. - Appellant-defendant by the instant appeal has called in question the impugned order dated 6th of February 2012 passed by the learned District Judge, Rajsamand (for short, 'learned trial Court'), whereby the learned trial Court has rejected his application under Order 9, Rule 13 CPC. 2. The learned trial Court while dismissing the application of the appellant for setting aside decree dated 2nd of April 2009, has observed in the impugned order that it is grossly belated and there is no plausible explanation for inordinate delay of two years. Besides this, on merits the learned Court below has found that the grounds set out in the application are not convincing and no sufficient cause is forthcoming due to which the appellant was prevented from his appearance before the Court. 3. Assailing the impugned order, learned counsel for the appellant Mr. Deelip Kawadia, has urged that the summons of the case issued by the Court below were never offered to the appellant, and therefore, the report of the process server, that the appellant has declined to accept the summons, is baseless and false, and as such, the learned Court below ought to have examined this aspect while considering the application for setting aside the ex-parte decree. Mr. Kawadia, learned counsel for the appellant, has strenuously urged that when the appellant has specifically pleaded a ground for setting aside ex-parte decree, that he had no knowledge about the pendency of the suit and summons were not duly served on him, it was bounden duty of the learned Court below to make necessary enquiry as envisaged under Rule 19 Order 5 CPC for ascertaining that Rule 17 of the Order 5 CPC has been adhered by the process server in letter and spirit. The learned counsel for the appellant would urge that from a bare perusal of the impugned order, it is crystal clear that the learned Court below has not made any endeavor to make an enquiry and to examine the process server for unearthing the truth, therefore, the impugned order cannot be sustained. In support of his contentions, Mr. Kawadia has placed reliance on the verdict of this Court in case of Chuki Devi (Smt.) & Ors. v. Laxminarayan [2011 (1) RLW 952] . In this verdict, while examining the vital issue relating to service of summons, the Court has made following observations in Para 7 to 11: 7. In support of his contentions, Mr. Kawadia has placed reliance on the verdict of this Court in case of Chuki Devi (Smt.) & Ors. v. Laxminarayan [2011 (1) RLW 952] . In this verdict, while examining the vital issue relating to service of summons, the Court has made following observations in Para 7 to 11: 7. In order to establish whether the summons were properly sent or not, naturally the star witness would be the process server himself. Even if it is admitted that the appellants did not press their application for summoning the process server as a witness, it does not mean that the Court should sit as a mute witness. In catena of cases, the Hon'ble Supreme Court has observed that judges do not sit like silent spectator watching the trial. In fact, they are legally bound to play a pro-active role. Since it was the duty of the learned Judge to decipher and to adjudge whether the summons were properly served or not, he was, in fact, duty bound to summon the process server himself. Of course, he could have invoked his power and could have examined the process server as a Court witness. Even if there is a statement of process server available on record, but the credibility of the witness can be decided only once a witness is subjected to cross-examination. Therefore, the learned Judge was duty bound to call the process server as a Court witness and to permit the appellants to subject him to a proper crossexamination. Unfortunately, the learned Judge has failed to exercise a jurisdiction which was clearly vested in him. With this failure, he has caused injustice to the appellants. 8. A bare perusal of the testimonies of Amar Singh and Ghanshyam clearly reveal that Amar Singh, in his cross-examination, has also admitted that he was not present when the process server was trying to deliver the summons to the appellant No. 1. Therefore, his testimony, as admitted in cross-examination-in-chief, looses all its significance. Moreover, Ghanshyam claims in the cross-examination that Rajendra Singh was present. Since this statement is contradictory to the report of the process server, even this witness cannot be relied upon. In this view of the matter, the testimonies of both these witnesses do not come to rescue of the respondent. 9. In the case of Shyam Lal and Ors. Moreover, Ghanshyam claims in the cross-examination that Rajendra Singh was present. Since this statement is contradictory to the report of the process server, even this witness cannot be relied upon. In this view of the matter, the testimonies of both these witnesses do not come to rescue of the respondent. 9. In the case of Shyam Lal and Ors. (supra), this Court has clearly held as under: 10. Order 5, Rule 10 prescribes the mode of service which is to be made by delivering or tendering a copy thereof signed by the Judge or such officer to the defendant. Rule 12 prescribes that as far as possible service shall be made on defendant in person unless he is an agent empowered to accept service. Rule 15 provides that in case 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 had no agent empowered to accept the service of the summons on his behalf, in such situation the service may be made on any adult member of the family who is residing with him. Rule 17 Order 5 prescribes that where the defendant or his agent or such other person refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, or 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. Rule 19 provides that where summons are returned under Rule 17, and if returned under the rule had not been verified by the affidavit of the serving officer and may, if it has been so verified, examine, the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit. Rule 19-A provides simultaneous issue of summons for service by post in addition to personal service and Rule 20 provides for substituted service. 11. Rule 19-A provides simultaneous issue of summons for service by post in addition to personal service and Rule 20 provides for substituted service. 11. Since a summon is not merely a formality to be observed, but is a serious business, therefore, the Court should be vigilant enough to see whether the summons were duly served according to law or not. In the present case, the summons were not duly served. Therefore, this Court has no other option but to set aside the order dated 17.04.2010. Hence, the ex-parte decree and judgement dated 06.08.2003 is, hereby, set aside and the case is sent back to the trial Court to proceed further. Since the case has been hanging fire for many years, the trial Court is directed to expedite the case as soon as possible. Mr. Kawadia has also placed reliance in this behalf on an earlier verdict of this Court in case of Shyam Lal & Ors. Vs. Ram Charan & Anr. [RLR 2001 (2) 93] . While examining the issue relating to affixation, the Court has clarified that examining the process server is essential as a part of the enquiry. The Court, made following observations in Para 9: 9. In the present case, the process server on the very first service has reported that he had affixed the service on the outer wall of the house. If there was any refusal on the part of the person concerned and the report having been challenged, such process server should have been examined and also should have been produced for cross examination. In regard to notice dated 14.12.1993 said to have been sent by the counsel to Balaram, it is stated that it was received by one Nirmal Kumar. There is serious doubt about the service having been effected on the party concerned and as such in my opinion it is a fit case where the ex-parte proceeding ought to have been set aside with the opportunity to the present petitioner-defendant to contest the case in accordance with law. Per contra, Mr. Sandeep Saruparia, learned counsel for the respondent-plaintiff, has vehemently argued that despite knowledge about the pendency of the suit and service of summons, the appellant has not appeared to contest the suit is a glaring example of his callousness and therefore the learned Court below has rightly declined the prayer of the appellant for setting aside ex-parte decree. Mr. Sandeep Saruparia, learned counsel for the respondent-plaintiff, has vehemently argued that despite knowledge about the pendency of the suit and service of summons, the appellant has not appeared to contest the suit is a glaring example of his callousness and therefore the learned Court below has rightly declined the prayer of the appellant for setting aside ex-parte decree. Mr. Saruparia, while laying great stress on second proviso to Rule 13 Order 9 CPC, has urged that an ex-parte decree cannot be set aside merely on the ground that there being irregularity in service of summons, if the Court is satisfied that the defendant had knowledge of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. For substantiating this contention, learned counsel for the respondent has argued that the process server has reported that summons were offered to the appellant but he has refused to accept the same and therefore in these circumstances the same was affixed. According to the learned counsel for the respondent, this sort of situation clearly indicates that the appellant had sufficient knowledge about the date of hearing and there is nothing on record to show that he was prevented from appearance due to sufficient cause. Mr. Saruparia, while joining the issue with the appellant that process server was not examined by the learned Court below, has submitted that at the behest of the appellant no endeavor was made to call the process server and therefore, the learned Court below has not committed any error much less an error of law in not calling the process server for his examination. The learned counsel for the respondent, while stoutly defending the impugned order has submitted that the application for setting aside ex-parte decree was grossly belated and the delay was not condoned by the learned Court below by recording a definite finding that there was no sufficient cause for explaining the delay, and therefore, according to him, in such a circumstance, no interference with the impugned order of the learned Court below is warranted and the discretion exercised by the learned Court below is not liable to be interfered with.I have heard the learned counsel for the parties and perused the impugned order.The procedure for service of summons is envisaged under Order 5, Rule 9 to 30 CPC. Rule 17 Order 5 prescribes the procedure when defendant refuses to accept service, or cannot be found, which reads as under: 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 so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. Elaborating the presumption about service in accordance with Rule 17 Order 5 CPC, Rule 19 lays down the procedure for examining of serving officer in certain contingencies. According to Rule 19, if the serving officer has not tendered his affidavit for service, indicating the sequence of events as envisaged under Order 17, it becomes imperative for the Court to examine him by calling in Court. The complete text of Rule 19 Order 5 CPC is as under: 19. Examination of serving officer.- Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit. On a close scrutiny of the impugned order, it is clear that the report of the process server that the appellant has refused to accept service of summons, and therefore, he has affixed the summons at conspicuous place of his residence, is absolutely vague and cryptic. Admittedly, for carrying out this entire procedure, the process server Dau Singh had not tendered his affidavit. In these circumstances, this Court feels that there is serious doubt about service of summons on the appellant and for dispelling this doubt it was desirable from the learned Court below to examine the process server for unearthing the truth. By not resorting to the prescribed procedure, the learned Court below has committed a grave and serious error of law, which is apparent on the face of record and this sort of error cannot be excused by this Court. The service of summons is a very serious matter and it is not an empty formality because service of summons is an information to the defendant about the launching of litigation against him and to call upon him to defend his cause. The argument of the learned counsel for the respondent, that second proviso to Rule 13 Order 9 CPC is attracted in the instant case, is per-se not tenable because it is not a case of irregular service of summons. What was necessary for the learned trial Court was to ascertain as to whether the process server has observed the procedure envisaged under Rule 17 Order 5 CPC in its letter and spirit and the best person to prove this fact was the process server.In view of law laid down by this Court in Chuki Devi (Smt.) & Ors., and Shyam Lal & Ors. (supra), the learned trial Court was under an obligation to call the process server for his examination and by not resorting to that procedure for making enquiry, as envisaged under Rule 19 Order 5 CPC, the learned Court below has committed a manifest error of law in rejecting the application of the appellant. (supra), the learned trial Court was under an obligation to call the process server for his examination and by not resorting to that procedure for making enquiry, as envisaged under Rule 19 Order 5 CPC, the learned Court below has committed a manifest error of law in rejecting the application of the appellant. Therefore, in my opinion, the order impugned cannot be sustained.The net result of the above discussion is that the impugned order passed by the learned Court below is quashed and set aside and the matter is remanded back to learned trial Court for deciding the application of the appellant under Order 9, Rule 13 CPC for setting aside exparte decree afresh strictly in accordance with law, as expeditiously as possible.The parties are directed to appear before the learned trial Court on 4th of October 2013.Costs are made easy. *******