JUDGMENT 1. - The petitioner is aggrieved by the order dated 6.2.2014 passed by the learned Addl. District and Session Judge, No.19, Jaipur City (Sanganer), whereby the learned Judge has quashed and set aside the order dated 22.7.2013, wherein the learned Magistrate had rejected an application filed under Order 9, Rule 13 read with Section 151 CPC filed by the respondent. 2. The brief facts of the case are that the petitioner, Rukmani Devi, filed a suit for declaration and for permanent injunction against the respondent No.1, Jagdish Narayan. Allegedly, summons were issued. According to the order dated 16.1.2010, the learned trial court concluded that the summons have been duly served upon the respondent No.1. Therefore, by order dated 16.1.2010, an ex-parte proceedings were initiated against the respondent No.1. Eventually, by judgment and decree dated 15.12.2010, the case was decreed in favour of the petitioner, Smt. Rukmani Devi. However, subsequently when the respondent No.1 discovered that a decree has been passed against him, he filed an application under Order 9, Rule 13 CPC. In his application, he pleaded that in fact, no summons were served upon him. According to him, no summons had been pasted at his house. Further, according to him, the entire service of summons has been done cleverly by the plaintiff and the process server. Therefore, the ex-parte proceedings should have been set aside. But by the order dated 22.7.2013, his application was dismissed by the learned Magistrate. Aggrieved by the said order, the respondent had filed an appeal before the learned Judge. By the order dated 6.2.2014, the learned Judge has set aside the order dated 22.7.2013 and accepted the appeal. Hence, this petition before this Court. 3. Mr. Sanjay Mehrishi, the learned counsel for the petitioner, contended that according to the learned Magistrate, both the summons of civil suit as well as of temporary injunction application have been served. Therefore, the learned Magistrate was justified in rejecting the application. However, this aspect has been overlooked by the learned Judge. Thus, the learned Judge has erred in setting aside the order dated 22.7.2013. Secondly, according to Order 9, Rule 13 proviso (ii), no courts shall set aside a decree passed ex-parte merely on the ground that there has been some irregularities in the service of summons. Therefore, according the learned counsel, the learned Judge has erred in setting aside the ex-parte decree. 4. Secondly, according to Order 9, Rule 13 proviso (ii), no courts shall set aside a decree passed ex-parte merely on the ground that there has been some irregularities in the service of summons. Therefore, according the learned counsel, the learned Judge has erred in setting aside the ex-parte decree. 4. Heard the learned counsel for the petitioner and perused the impugned order. 5. Order 5, Rule 17 CPC deals with procedure to be adopted when defendant refuses to accept service, or he cannot be found. Order 5, Rule 17 CPC is 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 acknowledgement, 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. 6. According to this provision, while pasting a copy of the summons on a conspicuous part of the house in which the defendant ordinarily resides, or carries on business, or personally works for gain, the process server is required to paste the copy of summons in the presence of two witnesses, whose names and address shall be given in his report. He is further required to spell out the circumstances in which the procedure for affixing the summons was carried out. 7. He is further required to spell out the circumstances in which the procedure for affixing the summons was carried out. 7. According to Order 5, Rule 19 CPC, 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, touching his proceedings, and may make such enquiry in the matter as it thinks fit; and after holding that inquiry, the court is free to declare that the summons have been duly served, or order such service as it thinks fit. 8. Order 9, Rule 13 is as under:- 13. Setting aside decree ex-parte against defendants.- In any case in which a decree is passed ex-parte against a defendant, he may apply to the court by which the decree was passed for an Order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an Order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be sent aside as against all or any of the other defendants also: Provided further 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 plaintiffs claim. 9. The second proviso clearly stipulates that the court shall not set aside the ex-parte decree on the ground that there has been irregularities in the service of summons. 9. The second proviso clearly stipulates that the court shall not set aside the ex-parte decree on the ground that there has been irregularities in the service of summons. But these words are further subject to the words "if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim." Thus, the court has to reach a satisfaction that the defendant had notice of the date of hearing, and had sufficient time to appear before the court. 10. A bare perusal of the impugned order clearly reveals that the learned Judge has noticed the fact that proper inquiry was not held by the learned trial court under Order 5, Rule 19 CPC. Although the process server had claimed that the respondent had refused to accept the notice, although he had given names of two witnesses, but even in his written report, he has neither mentioned the address of these two witnesses, nor mentioned the circumstances under which the summons were pasted. Moreover, the learned trial court neither examine the process server as a witness, nor examined the two witnesses, who allegedly witness the pasting of the summons on the house of the defendant. Therefore, according to the learned Judge, the learned trial court could not have declared that the summons were duly served. Hence, the procedure established by law has been ignored. Thus, the learned Judge was certainly justified in concluding that the respondent did not have any notice about the date of hearing and could not have appeared before the court to answer the plaintiffs claim. 11. The respondent had come with a case that due to an understanding between plaintiff and the process server, the notices was neither served upon him personally, nor pasted at his house. Once, this stand was taken by the respondent, the learned trial court was duty bound to follow the procedure under Order 5, Rule 19 CPC, before it could declare that summons have been duly served. It was required to examine the process server and if necessary, examine the two witnesses, who had allegedly witness the pasting of summons. Interestingly, in the present case, although names of those two witnesses have been shown, their address, are conspicuously missing. The absence of their address should have alerted the learned trial court about genuineness of the service of summons. Interestingly, in the present case, although names of those two witnesses have been shown, their address, are conspicuously missing. The absence of their address should have alerted the learned trial court about genuineness of the service of summons. After all, the process server could not have been unaware of the requirements of Order 5, Rule 17 CPC. 12. In the case of Chuki Devi (Smt.) and Ors. v. Laxminarayan [2010(2) DNJ (Raj.) 718] , this Court had opined that the judges do not set as mute witness, or as silent spectator. They are supposed to play pro-active role in dispensation of justice while deciding applications placed before. Since the service of summon is not a mere formality, but a serious business, the court should be vigilant enough to see whether the summon was duly served according to law or not? Similar view has also been held by this Court in the case of Shyam Lal and Ors. v. Ram Charan and Anr. [ 2001 (2) RLR 93 ]. 13. In case, the learned Judge was satisfied that the defendant had no notice of the date of hearing, then he was justified in setting aside the ex-parte decree. In the present case, since the procedure under Order 5, Rule 19 CPC has not been followed, the learned Judge was justified in concluding that the respondent did not have sufficient notice of the date of hearing. 14. For the reasons stated above, this Court does not find any illegality or perversity in the impugned order. The writ petition being devoid of any merit, is, hereby, dismissed. The stay application also stands dismissed.Petition dismissed. *******