ORDER 1. Petitioner has filed this civil revision being aggrieved by the order dated 26.8.2016 passed by 5th Additional District Judge, Gwalior, in Miscellaneous Civil Appeal No.46/2014 confirming the order dated 30.8.2014 passed by 7th Civil Judge Class-II, Gwalior, in M.J.C. No.23-A/2013, whereby learned trial Court had dismissed the application under Order 9 rule 13 of CPC, which was moved by the present revision petitioner. 2. It is the case of the petitioner that initially he was not impleaded as a party in the suit, which was filed by respondent No.1 in the present civil revision namely Surendra Singh Yadav. Thereafter, he had moved an application under Order 1 rule 10 of CPC to implead him as a party and without issuing any notice of such application, same was allowed and present petitioner was impleaded as a party. Thereafter, summons were never served on the petitioner and therefore, he could not appear before the trial Court and ex parte decree was passed against him. It is his contention that thereafter, as soon as he came to know about the said judgment and decree, he had filed an application for setting aside the ex parte proceedings by way of filing an application under Order 9 rule 13, but that has been rejected by the trial Court so also miscellaneous appeal filed by him against such rejection, has been dismissed by the Court of 5th Additional District Judge, therefore, petitioner has filed this civil revision. 3. Learned counsel for the petitioner further submitted that plaintiff/ respondent- Surendra Singh Yadav never filed any reply to application under Order 9 rule 13 of CPC nor filed any affidavit in lieu of oral evidence in rebuttal of the contentions put-forth by the present petitioner and therefore, in the light of the law laid-down by this Court in the case of Kher Singh v. Phoolchand, as reported in 1981 JLJ SN 5, the Court should have allowed the application under Order 9 rule 13 and should have permitted the petitioner to participate in the proceedings from the stage where from he was proceeded ex parte. He has also placed reliance on the judgment of the Supreme Court in the case of Sushil Kumar Sabharwal v. Gurpreet Singh and others, as reported in (2002)5 SCC 377 , wherein it has been held that if the service is not proper, then ex parte proceedings drawn against such person needs to be set aside. 4. It is further submitted that the notices which were allegedly served through Chaspa have been enclosed by him and in the said notice, there is only mention of notices being affixed in presence of one- Shyamlal. The note reads as under: ^^esjs lkeus uksfVl pLik fd;kA ';keyky 9-5-2012** 5. It is the case of the petitioner that Shyamlal never identified the petitioner nor made an endorsement that he had recognized the petitioner and the petitioner was the same person namely- Bablu @ Deepak and had refused to accept the notices and in view of such lack of identification, it cannot be said that provisions of Order 5 rule 18 were sufficiently complied with and, therefore, the service was defective. 6. On the contrary, learned counsel for respondent No.1 submits that there is no illegality in the impugned orders. Petitioner is related to the original defendant Kiran Saxena and is in fact sub-tenant of Kiran Saxena, who had let-out the shop after getting it evicted from him in the name of it's demolition from municipal authorities for widening of the road and therefore, the present petitioner was having knowledge of the suit and was deliberately not appearing with a view of lingering on the proceedings in the Court. It is further submitted that he had produced Shyamlal before the Court and his evidence was led to the effect that he had identified Bablu, but since Bablu had refused to accept the notices, notices were pasted on a conspicuous place close to the shop of Bablu and therefore, the service was properly made. He fairly submits that he has no idea as to why no reply or affidavit was filed to the application under Order 9 rule 13 of CPC. 7. Even if the submission of learned counsel for respondent No.1 is accepted that he had adduced evidence of Shyamlal, then also Shyamlal could not have given evidence beyond the noting on the rear side of the notice which is available in the revision petition. 7. Even if the submission of learned counsel for respondent No.1 is accepted that he had adduced evidence of Shyamlal, then also Shyamlal could not have given evidence beyond the noting on the rear side of the notice which is available in the revision petition. There is no endorsement to the effect that he had identified the person served and such person had refused to accept the notices and, therefore, they were not left with any other option but to serve notices through affixture. In absence of any material, no amount of oral evidence can supplement the documentary evidence i.e. notice through affixture. 8. At this stage, learned counsel for respondent No.1 submits that in fact notices were also issued through registered post and it is apparent from reading of the order sheet dated 15.5.2012, that the Court has noted about service of the notices and therefore, even if a defect permeated for service through affixture, it will be presumed that notices were served through registered post and therefore, petitioner cannot take an alibi of non-service of notices and seek setting aside of the ex parte judgment and decree. 9. Even if this argument of learned counsel for respondent No.1 is taken into consideration, there was an order on 4.5.2012 to issue notices by both the modes namely- ordinary as well as registered post. There is no mention in the order sheet dated 15.5.2012 as to when the notices were issued through registered post and as to when in fact service through registered post was effected. There is no mention of any postal receipt and also there is no mention of acknowledgment card being received after service of notices through registered post. Since thirty days' period had not lapsed between 4.5.2012 and 15.5.2012, therefore, service by registered post could not have been presumed by learned trial Court. 10. In view of the aforesaid, it is apparent that the trial Court is referring to service on Bablu through affixture and since the counsel for the petitioner has been able to successfully point-out legal lacuna in service on Sai Enterprises through Proprietor- Bablu through affixture, it is apparent that the petitioner was not served properly before he was proceeded ex parte. 11. 11. In this connection, it will be profitable to refer to the judgment in the case of Kher Singh (supra), wherein this Court has taken a view that :- “The provisions of Order 9 are not penal in character and in absence of motive to remain deliberately absent from the Court, the defendant should be given a chance to meet the case on merits. It has been further held that rules of procedure are not to be so strictly construed and applied as to deny justice.” Similarly, in the case of Sushil Kumar Sabharwal (supra), the issue of proper service has been dealt with and the Hon'ble apex Court has been pleased to held that : - “When a Court is satisfied that the summons were not served on the defendant and he did not have an opportunity of appearing in the trial Court and contesting the suit on merits, the Court should have allowed the application and refusing to set aside the ex parte judgment and decree will amount to failure of justice.” 12. In view of such judgments of this Court and the Supreme Court so also appreciating the facts which have been produced, this Court is of the opinion that the application under Order 9 rule 13 of CPC deserves to be allowed and the impugned orders dated 26.8.2016 and 30.8.2014 deserve to be set aside and are set aside. Consequently, the judgment and decree dated 31.7.2013 passed in Civil Suit No.22-A/2012 is set aside; application under Order 9 rule 13 of CPC is allowed. Trial Court to proceed for which parties shall appear before the trial Court on 2.8.2017.