ORDER : Mr. Prakash Gupta, J. 1. By this revision petition under Section 115 CPC, the petitioners seek to challenge the order dated 31st October, 2007 passed by the Civil Judge (Jr. Div.) Sikar in Civil Misc. Case No. 34 of 2003 whereby the application filed by the non-petitioner under Order 9, Rule 13 CPC has been accepted. 2. Briefly stated the facts of the case are that the petitioner filed a suit against the non-petitioner for eviction and recovery of arrears of the rent due on the ground of default in payment of rent and non-user of the shop in dispute which was decreed by the trial court vide its judgment and decree dated 25th January, 2002. The said decree was executed as the possession of the disputed shop was handed over to the petitioner by the Nazir on 15th February, 2003. After that the non-petitioner filed an application under Order 9, Rule 13 CPC in the trial court for setting aside the ex parte decree dated 25th January, 2002. The application was opposed by the petitioner. 3. Both the parties adduced oral evidence in support of their respective case and the learned trial court vide order dated 31st October, 2007 allowed the application filed by the non-petitioner under Order 9, Rule 13 CPC on the cost of Rs.500/- and set aside the ex-parte decree and judgment dated 25th January, 2002. 4. Hence, the present revision petition. 5. It is submitted by Shri Ashok Mishra, learned counsel for the petitioners that the trial court has committed serious illegality and irregularity while allowing the application filed by the non-petitioner under Order 9, Rule 13 CPC by misreading the evidence available on record regarding service of summon. The trial court has not properly considered this aspect of the matter that Manoj Kumar (AW-2), process-server has clearly stated that the non-petitioner was found at the house and refused to accept the notice and when he tried to affix the same on the house, he obstructed the same. He made an endorsement on the summon (Ex.3A) in this regard in the presence of two persons namely; Nitin Kumar Tata and Swaroop Chand Patni. Therefore, it is clear that the non-petitioner had knowledge about filing of the suit. He made an endorsement on the summon (Ex.3A) in this regard in the presence of two persons namely; Nitin Kumar Tata and Swaroop Chand Patni. Therefore, it is clear that the non-petitioner had knowledge about filing of the suit. It is further submitted by Shri Mishra that the degree of proof in such matters is very high and it was for the non-petitioner to prove by strong evidence that he was not duly served with the summon and the court proceeded ex party illegally. In the instant case, the non-petitioner has totally failed to discharge his obligation by adducing proper and cogent evidence. It is also submitted by him that the learned trial court has committed material irregularity and jurisdictional error in treating the application within limitation. He further contended that once the process server delivered a copy of the summons and a copy of the plaint to the defendant and if the defendant refused to sign the other copy of the summons in token of acceptance of service, it is clear that the provisions of law regarding service of summons had been complied within in substance and it could not be held that summons was not duly served. It was not obligatory on the court to comply with the provisions of Order 5, Rule 17 CPC when the defendant refused to accept service of process. It is then submitted that from the report of process server it is clear that service of summons was resisted by the defendant then it must be deemed to be sufficient service. In support of his submissions, learned counsel for the petitioners has placed reliance on the judgments of the Punjab High Court in Rishi Kesh Badri Parshad v. Nath Hargu Lal (AIR 1957 Punjab 38) and judgment of Andhra Pradesh High Court in K. Panchakshara Reddy v. N. Krishna Reddy (AIR 1969 Andhra Pradesh 67). 6. On the other hand, Shri Rajendra Soni, learned counsel for the non-petitioner has supported the impugned order passed by the trial court. Pointing out towards the evidence Deepak Kumar (NAW.1), Sanwar Mal (NAW.2) and Manoj Kumar (AW.2) learned counsel for the non-petitioner has contended that there are major contradictions in the statements of three witnesses on material aspects i.e. regarding presence of the two witnesses namely Deepak Kumar and Sanwar Mal. The persons whose presence was shown in the summons did not appear in the witness box. The persons whose presence was shown in the summons did not appear in the witness box. Therefore, the learned trial court has rightly held that the service of summons on the non-petitioner was not proper and thus, committed no irregularity or error in allowing the application filed by the non-petitioner under Order 9, Rule 13 CPC. It is also submitted that before passing ex parte decree, the court must be satisfied that due service of summons was ‘proved’ and the summons has to be duly served in time. Date of hearing is significant and defendant’s knowledge about pendency of the suit does not amount to his knowledge about the date of hearing. On alleged refusal of the defendant to accept the summons, process server’s failure to affix a copy of the summons on the wall of the premises and instead his returning the summons to the court with his endorsement on the back about defendant’s refusal, amounted to non-service of the summons. 7. After hearing learned counsel for the parties, I have gone through the impugned order and the statements of Shekh Abdul Rehman (PW.1), Deepak Kumar (NAW.1), Sanwar Mal (NAW.2) and Manoj Kumar (AW.2) as well as the case law cited before me. 8. In his examination in chief, process server Manoj Kumar (AW.2) stated that he went to the house of defendant-Shekh Abdul Rehman for service of summons (Ex.3). He did not know Shekh Abdul Rehman in person and did not take any person with him. He found defendant present at the house and effected service of the summons. Nitin Kumar Tata and Swaroop Chand Patni met him infront of the house of the defendant. They identified the defendant as Shekh Abdul Rehman to whom he tried to deliver summons. He has further stated that he did not affix a copy of the summons on the wall of the house of the defendant as the defendant did not permit him to do so but no such fact has been mentioned on the summons. 9. On the contrary, Deepak Kumar (NAW.1) in cross examination has admitted that along with the process-server, he and his father Mohan Lal went for service of summons upon defendant where Swaroop Chand Jain and Nitin Kumar Jain were present. When the process-server tried to handover summons to the defendant, he refused to accept the same. 9. On the contrary, Deepak Kumar (NAW.1) in cross examination has admitted that along with the process-server, he and his father Mohan Lal went for service of summons upon defendant where Swaroop Chand Jain and Nitin Kumar Jain were present. When the process-server tried to handover summons to the defendant, he refused to accept the same. Thereafter, after making endorsement on the summons, the process-server returned back with the summons. The witness admitted it is to be true that he along with his father identified the defendant Abdul Rehman and told the process server that he is the defendant. 10. In his cross-examination the defendant Shekh Abdul Rehman (AW.1) has denied the suggestion that on 3rd January, 2001 any employee of the court came to his house for service of summons and he denied to accept the same. The witness has also denied the suggestion that he had knowledge of pendency of the suit. 11. In Rishi Kesh Badri Parshad (supra), the Punjab & Haryana High Court has held as under:- “It is true that according to the report submitted by the process-server the refusal to accept the process was made not only in the presence of the landlord but also in the presence of Punnu Mal and Ratan Pal and that these two witnesses have not been produced in Court, but the fact remains that both the Courts below have accepted the testimony of Mohammad Aiyub process-server who, as I have stated already, was produced by the defendant himself and who stated quite clearly that he effected service of the process on the defendant by tendering copy of the summons to him. As the provisions of law have been complied with in substance and effect, I am unable to hold that summons was not duly served. It has been held repeatedly that when a defendant refuses to accept service “of process it is not obligatory on the Court to comply with the provisions of Rule 17 Order 5 of the Code of Civil Procedure. Teja Singh v. Jaswant Singh’, AIR 1935 Lah 171 (A), ‘Vishwanath v. Vaijnath’ AIR 1925 Nag 356 (B), Dund-bahadur Singh v. Durga Prasad Singh’ AIR 1953 Pat 346 (C), and ‘Memon Aba Isa Haji Adhreman Dharar v. Memon Matnad Haji Suleman Chama-dia’ AIR 1955 Sau 28 (D).” 12. Teja Singh v. Jaswant Singh’, AIR 1935 Lah 171 (A), ‘Vishwanath v. Vaijnath’ AIR 1925 Nag 356 (B), Dund-bahadur Singh v. Durga Prasad Singh’ AIR 1953 Pat 346 (C), and ‘Memon Aba Isa Haji Adhreman Dharar v. Memon Matnad Haji Suleman Chama-dia’ AIR 1955 Sau 28 (D).” 12. In K. Panchakshara Reddy (supra), service of summons resisted by defendant, process server was driven away by him making service as contemplated by R.17 impossible. In such a situation it was held that service must be deemed to be sufficient service. The relevant paras 4 and 5 read as under:- “4. Before me it is urged by the learned Counsel for the petitioner that in this case the mandatory provision of Order 5, Rule 17 Civil Procedure Code, was not complied with and if the defendant was not available or he had refused to take the summons, the process server should have affixed the summons in the manner prescribed. But this rule cannot be applied to a case where it transpires that the defendant or somebody on his behalf has snatched away the summons. 5. In M.R. Ved & Co. v. S.B. Hayeem, AIR 1943 Bom 340, Chagla, C.J. (as he then was) held that where a copy of the summons has been given to the defendant and he ran away with it, thus rendering it impossible for the serving Officer to affix it to the building in which the defendant resides, Rule 17 Order 5 cannot be given effect to and the service in that case must be deemed to the sufficient service.” 13. But in the case of Sushil Kumar Sabharwal v. Gurpreet Singh & Others (2002) 5 SCC 377 , Hon’ble the Apex Court has held as under:- “7. Rules 17 and 18 of Order 5, C.P.C. which lay down the procedure of service when the defendant refuses to accept service and the endorsement to be made by the serving officer, read thus: “17. Rules 17 and 18 of Order 5, C.P.C. which lay down the procedure of service when the defendant refuses to accept service and the endorsement to be made by the serving officer, read thus: “17. Procedure when defendant refuses to accept service, or cannot be bound.-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 of some other conspicuous part of the house in which the defendant ordinarily reside 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. 18. Endorsement of time and manner of service.-The serving officer shall, in all cases in which the summons has been served under Rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons. 8. We find several infirmities and lapses on the part of the process server. Firstly, on the alleged refusal by the defendant either he did not affix a copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Firstly, on the alleged refusal by the defendant either he did not affix a copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall should have been witnessed by persons who identified the defendant and his shop and witnessed such procedure. The endorsement shows that there were no witnesses available on the spot. The correctness of such endorsement is difficult to believe even prima facie. The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. One can understand refusal by unwilling persons requested by the process wherever to witness the proceedings and be a party to the procedure of the service of summons but to say that there were no witnesses available on the spot is a statement which can be accepted only with a pinch of salt. Incidently, we may state that though the date of appearance was 23rd February, 1993 the summons is said to have been tendered on 22nd February, 1993, i.e., just a day before the date of hearing. 9. The appellant has himself appeared in the witness box and deposed on oath that no summons was tendered to him by any process server of the Court. It is a case of oath against oath. In view of the facts which we have noticed here-in-above clearly the oath of the appellant was more weighty than the oath of the process server. In the ordinary course of events, the court of facts should have discarded the statement of the process server and believed the statement of the appellant. 10. The learned counsel for the landlord-respondent submitted that there is an interpleader suit filed by the appellant because there was a dispute between the heirs of the original landlord who unfortunately died and his widow and the grandsons (who are the respondents herein), each of the two was claiming itself to be the landlord and entitled to recover rent setting up a will in its favour. The appellant has admitted in the plaint therein that he was aware of the pendency of the suit filed by the respondent in the court of the Rent Controller, Amritsar. In fact, this admission of the appellant has weighed heavily with the High Court which has opined that even if the summons was not duly served, the appellant was aware of the pendency of the suit and, therefore, the application under Order 9, Rule 13 C.P.C. did not have any merit. 11. The High Court has over looked the second proviso to Rule 13 Order 9 C.P.C., added by the 1976 Amendment which provides 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. It is the knowledge of the ‘date of hearing’ and not the knowledge of ‘pendency of suit’ which is relevant for the purpose of the proviso above said. Then the present one is not a case of mere irregularity in service of summons; on the facts is a case of non-service of summons. The appellant has appeared in the witness box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim which he did not avail and utilise. 12. The provision contained in Order 9, Rule 6 of the C.P.C. 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 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 obligations 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 of the C.P.C., 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. (emphasis supplied) 13. Be that as it may, we are satisfied that the summons was not served on the defendant-appellant. He did not have an opportunity of appearing in the Trial Court and contesting the suit on merits. The Trial Court and the High Court have committed a serious error of law resulting in failure of justice by refusing to set aside the ex-parte decree.” 14. The case at hand is squarely covered by the ratio laid down in the above case. The Trial Court and the High Court have committed a serious error of law resulting in failure of justice by refusing to set aside the ex-parte decree.” 14. The case at hand is squarely covered by the ratio laid down in the above case. There is nothing on the record to show that on alleged refusal of the defendant to accept the summons, the process server tried to affix a copy of the summons on the wall of the premises and instead he returned the summons to the court with his endorsement on the same about defendant’s refusal which amounts to ‘non-service’ of the summons and, therefore, I am of the opinion that the learned trial court has committed neither material irregularity nor jurisdictional error while passing the impugned order. I find no merit in the revision petition and the same is liable to be dismissed. 15. Resultantly, the revision petition is, dismissed with a cost of Rs.10,000/- to be paid by the petitioners to the non-petitioner.