JUDGMENT : BISWAJIT BASU, J. 1. The revisional application under Article 227 of the Constitution of India is at the instance of the pre-emptee in a proceeding under Sections 8 and 9 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as ‘the said Act’ in short) and is directed against the order dated September 15, 2017 passed by the learned Additional District Judge, 7th Court, Paschim Midnapore, in Misc. Appeal No. 119 of 2015 thereby affirming the order No. 71 dated September 24, 2015 passed by the learned Civil Judge (Junior Division), 1st Court, Paschim Midnapore, in Misc. Case No. 44 of 2006. 2. The pre-emptor/opposite party filed an application before the learned Trial Judge under Sections 8 and 9 of the said Act contending, inter alia, that a share of the suit plot of which he is a co-sharer has been sold by one of the cosharers of the suit plot namely Shri. Dhruba Lal Singha vide deed No. 1949 dated May 20, 2004 in favour of the pre-emptee/petitioner, who is a stranger to the said plot of land. The further case of the pre-emptor/opposite party is that he is being the co-sharer of the suit plot has been constructively possessing land adjoining to the suit plot. He, therefore, by the said application applied before the learned Trial Judge that the share of the suit plot sold in favour of the pre-emptee by the aforementioned deed may be transferred in his favour on the grounds of co-sharership and vicinage. 3. The said application of the opposite party under Sections 8 and 9 of the said Act was registered before the learned Trial Judge as J. Misc. Case No. 24 of 2005. The learned Trial Judge by the judgment and order dated September 19, 2016 allowed the said Misc. Case ex-parte. 4. The petitioner on November 27, 2006 filed an application under Order IX Rule 13 of the Code of Civil Procedure along with an application under Section 5 of the Limitation Act, 1963 for setting aside the said ex-parte judgment and order on condonation of delay. The said application of the petitioner was registered as J. Misc. Case No. 44 of 2006. The said application of the petitioner was registered as J. Misc. Case No. 44 of 2006. The learned Trial Judge by the order No. 71 dated September 24, 2015 dismissed the application for condonation of delay in filing the application for setting aside the ex-parte judgment and order, consequently J. Misc. Case No. 44 of 2006 was also dismissed. 5. The petitioner being aggrieved by the said judgment and order of the learned Trial Judge preferred an appeal being Misc. Appeal No. 119 of 2015, the learned Additional District Judge, 7th Court, Paschim Midnapur dismissed the said appeal thereby affirmed the order of the learned Trial Judge, the order impugned here in. 6. Mr. Ghosh, learned senior counsel appearing on behalf of the petitioner draws my attention to the orders passed by the learned Trial Judge on September 21, 2005 from the photocopy of the certified copy of the orders passed in Misc. Case No.24 of 2005, annexed to the revisional application to contend that the said orders clearly show that the learned Trial Judge himself was not satisfied with the service of summons of the Misc. Case through process server and that is why by a subsequent order passed on the same date directed the opposite party to file requisite for service of summons of the said Misc. Case upon the petitioner by registered post. He submits that both the learned Courts below have committed error in holding that the summons of the said Misc. Case was served upon the petitioner through process server since the requirement of Order V Rule 17 of the Code of Civil Procedure regarding affixation of summons has not been complied with as there was no witness evidencing service of the said summons. 7. He further submits that such being the position of record which gives rise to a debatable issue as to whether the summons of the said J. Misc. Case No. 24 of 2005 was at all served upon the petitioner or not, it will be fair and just to give the petitioner a chance to contest the main proceeding. In support of his such contention he places reliance on the decision of the Hon’ble Apex Court in the case of MAHESH KUMAR JOSHI VERSUS MADAN SINGH NEGI reported in, (2015) 12 SCC 254 . In support of his such contention he places reliance on the decision of the Hon’ble Apex Court in the case of MAHESH KUMAR JOSHI VERSUS MADAN SINGH NEGI reported in, (2015) 12 SCC 254 . He concludes by submitting that his client has a fare chance of success in the main proceeding on merit, which should be taken into consideration while dealing with the application for setting aside the ex-parte judgment and order. 8. Mr. Rabindra Nath Mahato, learned counsel appearing on behalf of the opposite party refuting the contentions of Mr. Ghosh submits that the summons of the J. Misc. Case No. 24 of 2005 was duly served upon the petitioner but she choose not to appear and contest the said Misc. Case. He submits that the learned Courts below have not committed any error in coming to the conclusion that the summons of the said Misc. Case was served upon the petitioner by the process server inasmuch as firstly the petitioner in her application for setting aside the ex-parte judgment and order has not denied the service of summons of the said Misc. Case upon her through process server secondly it is apparent from the report and evidence of the process server that when the petitioner refused to accept the summons of the said Misc. Case, it was affixed on the outer door of the tea stall. 9. Mr. Mahato, further contends that the case made out by the petitioner even if accepted, suggests some irregularities in service of summons for which the ex-parte judgment and order cannot be set aside, as second proviso appended to Order IX Rule 13 of the Code puts a bar for setting aside ex-parte judgment and order on the grounds of such irregularities in service of summons. Mr. Mahato, responding to the argument of Mr. Ghosh that the process server’s report is defective for want of witnesses, submits that the said procedure is not mandatory. 10. Mr. Mahato relies on the decision of the Hon’ble Apex Court in the case of INDU BHUSHAN VERSUS MUNNA LAL AND ANOTHER reported in, (2007) 14 SCC 42 to contend that in the absence of any material to show that the process server’s report is not correct there is no illegality in refusing to set aside the at ex-parte judgment and order. He relies on the decision of the Hon’ble Apex Court in the case of Mst. BHABIA DEVI VERSUS PERMANAND PD. YADAV reported in, (1997) 3 SCC 631 and the Hon’ble Division Bench judgment of this Court in the case of EUREKA FORBES LIMITED VERSUS DEBTS RECOVERY APPELLATE TRIBUNAL, WEST BENGAL AND ANDAMAN NICOBER ISLANDS & ORS reported in, 2001 SCC OnLine (Cal) 552 to contend that the merit of the main lis cannot be looked into at the stage of the proceeding under Order IX Rule 13 of the code. 11. Mr. Mahato, has also placed reliance on a decision of the Hon’ble Division Bench of this Court in the case of Smt. SWASTIKA SEN (NEE MUKHERJEE) VERSUS PRITAM SEN reported in, 2009 SCC OnLine (Cal) 947 to contend that since the petitioner has failed to make out any case that the summons of the Misc. Case was not served upon her, is not entitled to succeed in the application under Order IX Rule 13 of the Code. He also relies on a decision of the Hon’ble Division Bench of this Court in the case of Smt NILIMA KARMAKAR VERSUS TARA CHARAN DAS AND ORS reported in,1999 SCC OnLine (Cal) 635 to contend that the avoidance of the petitioner to adduce evidence in support of her application under Order IX Rule 13 of the Code is fatal. Heard learned counsel for the parties, meticulously perused the materials on record. 12. It appears from the record that the opposite party filed the application under Sections 8 and 9 of the said Act, registered as J. Misc. Case No. 24 of 2005 on July 12, 2005. The learned Trial Judge fixed July 30, 2005 for deposit of the consideration money and on the said date the opposite party put in the requisite for service of summons of the said Misc. Case upon the petitioner. The learned Trial Judge in the order No. 3 dated August 30, 2005 records that the service of summons upon the petitioner has not been effected and fixed September 21, 2005 as the next date for service return. 13. The process server deposed in the proceeding under Order IX Rule 13 of the Code as OPW No. 2. The learned Trial Judge in the order No. 3 dated August 30, 2005 records that the service of summons upon the petitioner has not been effected and fixed September 21, 2005 as the next date for service return. 13. The process server deposed in the proceeding under Order IX Rule 13 of the Code as OPW No. 2. It appears from the report and deposition of the said process server that he went to a tea stall, claiming to be the tea stall of the petitioner on August 29, 2005 for effecting the service of summons of the said proceeding i.e., J. Misc. Case No. 24 of 2005 upon the petitioner. The said process server in his report dated August 29, 2005 has claimed that he went to the tea stall of the petitioner as described in the summons and enquired about the petitioner when one aged lady came out and he explained the content of the summons to the said lady but she refused to accept the summons, the process server thereafter hung the said summons on the outer door of the premises of the said tea stall. In the said report he further mentioned that the persons available in the tea stall did not put their signature on the summons. 14. The learned Trial Judge noted the return of the original summons in Court, in the order No. 4 dated September 21, 2005. The learned Trial Judge on the same day by the order No. 5 modified the order No. 4 by directing the opposite party to take steps to put in requisite for service of summons upon the petitioner. The said two orders assume much importance in resolving the issue involved in the present revisional application, as such quoted below:- “Order No. 4. 21.09.05 Petitioner takes no steps. S.R. upon o.p. has already been back with process servers report “hanging”. Petitioner is directed to show cause as towhy the case will not be dismissed for default. Fix 18.11.05 for show cause by the petitioner. Civil Judge, (Junior Division) 1st Court, Midnapore Order No. 5. 21.09.05 Petitioner takes steps by filing haziran through lawyer which was misplaced at the time of passing order No. 4. At this stage order No. 4 dt. 21.09.05 is modified. Petitioner is directed to take step to file requisite of notice to serve upon the o.p. by the date fixed i.e. 18.11.05. 21.09.05 Petitioner takes steps by filing haziran through lawyer which was misplaced at the time of passing order No. 4. At this stage order No. 4 dt. 21.09.05 is modified. Petitioner is directed to take step to file requisite of notice to serve upon the o.p. by the date fixed i.e. 18.11.05. Civil Judge, (Junior Division) 1st Court, Midnapore” 15. It is clear from the above quoted two orders that the learned Judge was not satisfied with the process server’s report and as such directed the petitioner to put in the requisite for service of notice of the said Misc. Case through registered post. The learned Courts below since have dismissed the proceeding under Order IX Rule 13 of the Code on the finding that the summons of the said proceeding was served upon the petitioner by the process server, the correctness of the said finding is required to be addressed on the basis of materials available on record. 16. The process server in his report has claimed that he went to the tea stall of the petitioner as described in the summons. On perusal of the summons it appears the following address of the petitioner was mentioned in the said summons:- “Smt. Sindhu Rani @ Sandhya Das W/O Late Purna Chandra Das residing at Nimtala Chak (Near chandrani sweets) Town P.O. and P.S. Midnapoer District. Paschim Midnapore.” 17. Under Order V Rule 17 of the Code when the defendant refuses to sign the acknowledgement 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 originally resides or carries on business or personally works for gain. 18. There is nothing on record to suggest that the petitioner carries on business from the tea stall or personally works for gain in the tea stall where the summons of the Misc. Case claimed to have been affixed by the process server. It is also an admitted position that there is no signature in the process server’s report of any witness in whose presence the copy of the summons was affixed on the outer door of the said tea stall. Case claimed to have been affixed by the process server. It is also an admitted position that there is no signature in the process server’s report of any witness in whose presence the copy of the summons was affixed on the outer door of the said tea stall. It further appears from the said report of the process server that when he enquired about the petitioner in the tea stall one aged lady came out and refused to take the summons, but he in his deposition has stated that the petitioner, Sandhya Das refused to take the summons. It is really astonishing that how the process server could identify the petitioner in his deposition when in his report he has only mentioned about one aged lady who refused to acknowledge the service. The apparent contradiction between the report and the deposition of the process server vitiates the validity of his report. 19. The provisions of Order V Rule 17 of the Code and Rule 64 of the Civil Rules and Orders prescribe the procedure of service of summons through process server. The requirement of witness has been contemplated in those provisions to identify the person on whom the service is to be effected and to identify the place of service. In the present case the report of the process server and his evidence is completely silent as to how the said process server could identify the tea stall as the place of service of the said summons, when the address appearing in the said summons was otherwise. Moreover from the apparent contradiction between the report of the process server and his evidence regarding the identity of the petitioner demands compliance of the requirements of Order V Rule 17 of the Code and Rule 64 of the Civil Rules and Orders. 20. The application for setting aside the ex-parte decree where the summons or notice was not served upon the defendant, the application for setting aside ex-parte decree under Article 123 of the Limitation Act, 1963 can be filed within thirty days from the date, when the applicant had knowledge of the decree. The petitioner in the application under Order IX Rule 13 of the Code has asserted that prior to November 22, 2006 she had no knowledge about the said ex-parte order. The petitioner in the application under Order IX Rule 13 of the Code has asserted that prior to November 22, 2006 she had no knowledge about the said ex-parte order. The ex-parte order was passed on September 19, 2016 and the application for setting aside the said ex-parte order was filed on November 27, 2006. Therefore, if the petitioner got the knowledge of the ex-parte judgment and order on November 22, 2006, the application for setting aside the said ex-parte judgment and order was filed within time. However, even if the time for filing the said application is reckoned from the date of said exparte judgment and order, there was not much delay in initiating the proceeding under Order IX Rule 13 of the Code which can said to be an inordinate delay. 21. It appears from the deposition of the son of the petitioner who deposed in the Misc. Case on behalf of the petitioner categorically denied service of summons of Misc. Case upon the petitioner by the process server which is sufficient denial of the claim of the opposite party that the service of summons was effected through process server. This Court, therefore, unable to accept the submission of Mr. Mahato, that the petitioner has not denied in the application for setting aside ex-parte judgment and order that the process server has not served the summons upon her. 22. There is apparent irregularities in service of summons of the said Misc. Case No. 24 of 2005 upon the petitioner. It is rightly pointed out by Mr. Ghosh, learned senior counsel for the petitioner that in the facts and circumstances of the present case issue regarding the service of summons upon the petitioner through process server is a debatable one as such the petitioner should be given a chance to contest the proceeding, as held in the decision of the Hon’ble Apex Court reported in (2015) 12 SUPREME COURT CASES 254 (supra). 23. The irregularities in the matter of service of summons through the process server in the instant case is not coming within the ambit of second proviso appended to Order IX Rule 13 of the Code inasmuch as what is important in the said proviso is the knowledge of the date of hearing not the knowledge of the pendency of the suit. In the instant case the process server claimed that the summons of the proceeding was hung in the tea stall of the petitioner on August 29, 2005 for her appearance in the suit fixed on August 30, 2005. The second proviso of Rule 13 of Order IX mandates that to bring a case within the ambit of the said second proviso, two conditions are required to be fulfilled firstly the defendant had notice of the date of hearing and secondly had sufficient time to appear and answer the plaintiffs claim. The serving summons on the petitioner one day prior to the date fixed in the suit for her appearance does not satisfy the second condition of the said proviso. 24. In view of the apparent irregularities in the service of summons of the said Misc. Case upon the petitioner through process server. The decision relied on by Mr. Mahato, reported in (2007) 14 SUPREME COURT CASES 42 (supra) is clearly distinguishable in the facts and circumstances of the present case. 25. Mr. Ghosh, learned counsel has not invited this Court to look into the merit of the main proceeding to set aside the order impugned. This Court is also not going into the question of the merit of the main proceeding to interfere into the order impugned, therefore, the decisions relied on by Mr. Mahato, reported in (1997) 3 SUPREME COURT CASES 631 (supra) and2001 SCC OnLine Cal 552 (supra) have no relevancy in determining the issue involved in the present revisional application. 26. It has already been pointed out that the deposition of the process server is clearly contradicting his own report, therefore, it cannot be said that the petitioner has failed to make out a case for setting aside the ex-parte decree under Order IX, Rule 13 of the Code. The decision relied on by Mr. Mahato, reported in 2009 SCC OnLine Cal 947 (supra) therefore, is also not applicable in the present case. 27. The learned Courts below have drawn adverse presumption for the failure of the petitioner to adduce evidence in support of her application for setting aside the ex-parte order. No doubt such default weigh a little in favour of the opposite party but in view of the apparent anomaly in the process servers report and his deposition, the petitioner should be given a chance to contest the J. Misc. Case No. 24 of 2005. No doubt such default weigh a little in favour of the opposite party but in view of the apparent anomaly in the process servers report and his deposition, the petitioner should be given a chance to contest the J. Misc. Case No. 24 of 2005. In view of the discussion made above, C.O 157 of 2018 is allowed. The judgment and order dated September 15, 2017 passed by the learned Additional District Judge, 7th Court, Paschim Midnapore, in Misc. Appeal No. 119 of 2015 thereby affirming the order No. 71 dated September 24, 2015 passed by the learned Civil Judge (Junior Division), 1st Court, Paschim Midnapore, in Misc. Case No. 44 of 2006 is set aside. The learned Civil Judge(Junior Division) 1st Court Midnapore is directed to decide the J. Misc. Case No. 24 of 2005 afresh after affording an opportunity to the petitioner to file written objection to the application of the opposite party under Sections 8 and 9 of the West Bengal Land Reforms Act, 1955. The Photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.