ORDER 1. The present civil revision under section 115 of Civil Procedure Code has been preferred by the petitioner/defendant challenging the ex parte judgment and decree dated 18.10.2004 passed by V Civil Judge Class II, Gwalior passed in Civil Suit No.286-A/2004. Similarly, the petitioner has challenged the order dated 19.7.2010 passed by XI Civil Judge Class I, Gwalior in Case No.03/2008 whereby application under Order IXs rule 13 CPC and application under section 5 of the Limitation Act preferred by petitioner/defendant has been rejected. Petitioner is further aggrieved by the order dated 27.8.2010 passed by the XI Additional District Judge (Fast Track), Gwalior in Case No.9/2010 whereby, Miscellaneous Appeal vide Miscellaneous Appeal No.9/2010 preferred by the petitioner/defendant has been dismissed. 2. The short facts of the case reveal that the respondent Shahi Zama Masjid Gwalior Intazamia Committee has preferred suit for eviction against the present petitioner being its tenant. 3. Notice was issued to the petitioner/defendant for appearance. The petitioner/defendant did not appear before the trial Court, therefore, he was proceeded ex parte. 4. According to petitioner/defendant said ex parte judgment and decree dated 18.10.2004 was never in his knowledge and when respondent/plaintiff started execution proceedings against him then for the first time on 11.4.2007, petitioner came to know about this fact and immediately on 12.4.2007, petitioner/plaintiff applied for obtaining the certified copy of the said ex parte judgment and decree and thereafter, on 16.4.2007, petitioner/defendant has preferred an application under Order IX rule 13 CPC for setting aside the ex parte decree. Along with said application, petitioner/plaintiff has also preferred an application under section 5 of the Limitation Act for condonation of delay. According to the petitioner/defendant, he never had any information about the summons issued to him by the trial Court, as he never received any summons from the trial Court. 5. Further submissions of the petitioner/defendant is that in support of application under Order IX rule 13 CPC, the petitioner has submitted oral as well as documentary evidence but the trial Court did not consider the same and has rejected the application preferred under section 5 of the Limitation Act and treated the application under Order IX rule 13 CPC as time barred and dismissed the said application also. 6. 6. Respondent/defendant submitted the reply and contested the claim of the petitioner/defendant on the ground that petitioner/plaintiff was always in the knowledge of the proceedings and has deliberately avoided the summons and therefore, the application preferred under Order IX rule 13 CPC along with application under section 5 of the Limitation Act by petitioner/defendant deserves to be dismissed. 7. Challenging the said order dated 19.7.2010 passed by XI Additional Civil Judge Class I, Gwalior in Civil Appeal No.03/2008, petitioner/defendant has preferred miscellaneous appeal vide Miscellaneous Appeal No.09/2010 before XI Additional District Judge (Fast Track), Gwalior and has specifically submitted an affidavit before the first appellate Court stating that there is no girl named like Saira in his family and he is not acquainted with any girl named as Saira whereas, the Bailiff report reveals that the summons of the trial Court have been accepted by a girl named as Saira. According to the petitioner/defendant, service of the summons have been effected on a girl, who does not exists in his family, therefore, it was not a proper service and therefore, he could not have any information about the pendency of any suit or any proceedings initiated against him before any competent civil Court by respondent/plaintiff. Therefore, petitioner/defendant has approached before this Court. 8. Heard counsel for the parties with consent and with their assistance perused the record. 9. The petitioner/defendant is a vegetable vendor and he is tenant of respondent/plaintiff. It is an admitted fact that respondent has preferred suit vide Civil Suit No.286-A/2004 before the trial Court against the petitioner/defendant for eviction of the suit premises. But due to non service of summons, the petitioner/defendant could not appear before the trial Court and therefore, vide order dated 22.9.2004, petitioner/defendant was proceeded exparte by the trial Court. 10. The trial Court framed issues and due to non-rebuttal of pleadings from the petitioner’s/defendant’s side, suit was decreed ex parte; vide judgment and decree dated 18.10.2004 by the trial Court. 11. Because of the fact that petitioner was proceeded ex parte before the trial Court, obviously he did not know the consequences of the judgment and decree passed by the trial Court. When the execution proceedings were initiated by respondent/plaintiff against him then, on 11.4.2007, petitioner/defendant came to know about this fact. 11. Because of the fact that petitioner was proceeded ex parte before the trial Court, obviously he did not know the consequences of the judgment and decree passed by the trial Court. When the execution proceedings were initiated by respondent/plaintiff against him then, on 11.4.2007, petitioner/defendant came to know about this fact. Immediately thereafter, he preferred an application under Order IX rule 13 CPC along with application under Order 5 of the Limitation Act on 16.4.2007 before the civil Court for setting aside the ex parte decree. 12. Considering the fact that petitioner/defendant is a vegetable vendor and comes from a humble background, therefore, it is imperative that he and his family members are working hard to make both the ends meet, therefore, it is in all likelihood that the summons must have reached to the petitioner/defendant on a time when petitioner/defendant or other adult member of his family were not available to receive it. The petitioner/defendant in his affidavit (although filed at appellate stage) has stated that no girl named as Saira lives with him in his family, therefore, there is apprehension about improper service effected on a person, who is not concerned or related with the family members of the petitioner/defendant. 13. According to petitioner/plaintiff, he has deposited the rent up to January, 2017 before the respondent/defendant. The only ground for eviction remains is section 12(1)(a) of the M.P. Accommodation Control Act. 14. The trial Court as well as the first appellate Court had proceeded on an assumption that the summons have been received by a girl named as Saira, who happens to be a family member of the petitioner/defendant, therefore, service of summons was effected properly and on proper person, but in the light of the fact that Saira is not a family member of petitioner, as contended by the petitioner, the said assumption gets falsified. 15. The requirement under the law is contained under Rules 15, 16, 17 and 18 of Order V. A perusal of rule 15 would show that “where the defendant is absent from his residence, when the summons are sought to be served and there is no likelihood of his being found at the residence, within a reasonable time the summons can be served on an adult member of the family. The requirement of the law is that ‘there is no likelihood of his being found within a reasonable time at his residence. 16. The endorsement on the summons does not read that the Bailiff at any point of time ever made any enquiry from anybody whether the defendant was available or not, whether there was any likelihood of his availability within a reasonable time or whether after some time, the said defendant could be served. When the law provides that the summons are to be served in a particular manner, that has to be served in accordance with law. This compliance is to be made and interpreted stringently because it involves the valuable right of a litigant (as defendant) to contest the claims and case of plaintiff. 17. Here in the present case, it seems from the arguments of the parties that the process server Bailiff has not been examined by the plaintiff. Under rule 16 of Civil Procedure Code, the serving officer under the law is duty bound to obtain the signature of the person to whom the copy is so delivered or tendered. The plaintiff was duty bound to examine the Bailiff to prove the tender of summons, service of summons and to state that it was in accordance with law. The plaintiff having failed to prove all these factual aspects, can’t be permitted to take advantage of the second proviso of rule XIII of Order 9 CPC. 18. Rule 13 of Civil Procedure Code reads as under : “13. Setting aside decree ex parte decree against defendant. The plaintiff having failed to prove all these factual aspects, can’t be permitted to take advantage of the second proviso of rule XIII of Order 9 CPC. 18. Rule 13 of Civil Procedure Code reads as under : “13. Setting aside decree ex parte decree against defendant. -- 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 set 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 plaintiff’s claim. ] [Explaination : Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other then the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]” 19. Second proviso reads 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 sufficient notice for his appearance. In the instant case, the Courts below have not considered this aspect in its true legal position. In the opinion of this Court, it was not a case of irregular service of summons, it was a case of illegality committed. In the instant case, the Courts below have not considered this aspect in its true legal position. In the opinion of this Court, it was not a case of irregular service of summons, it was a case of illegality committed. Nobody knew for sure that the person who was served with the summons was in fact a family member of the petitioner/defendant or not. 20. The above discussion gains support from an earlier judgment rendered by this Court in the matter of Lilabai w/o Kunjbihari Das and others v. Shri Triyogi Narayan, as reported in 1997(2) MPLJ 478 . The plaintiff was required to establish the fact that summon was duly served on the present petitioner/defendant in accordance with legal provisions as contained in Order V of Civil Procedure Code. 21. Looking to the social background and financial status of the petitioner/defendant, also, it can be assumed that service of summons was not properly effected over the petitioner/defendant and therefore, he could not appear before the trial Court for contesting the case. While proceeding ex parte, the overall background of litigant, surrounding where litigant lives and other related circumstances can be seen by the trial Court, if facts of the case suggest so. 22. Thus, considering the totality of circumstances, it would be fair and in the interest of justice that petitioner may get a chance to contest the case on merits, rather then ousted on technical grounds which themselves are not legally fool proof and ivoke clarity. 23. Resultantly, the civil revision is allowed. The judgment and decree dated 18.10.2004 passed by V Civil Judge Class II, Gwalior passed in Civil Appeal No.286-A/2004 and the order dated 19.7.2010 passed by XI Civil Judge ClassI, Gwalior in Case No.03/2008 and order dated 27.8.2010 passed by the XI Additional District Judge (Fast Track), Gwalior in Case No.9/2010 are hereby set aside. 24. As the petitioner/defendant now has appeared before this Court, therefore, he is not required to be re-summoned. 25. Both the parties are directed to appear before the trial Court on 14th July, 2016 and shall seek instructions from the trial Court for further proceedings. 26. The civil revision is disposed of accordingly.