JUDGMENT : 1. This revision petition has been directed against the order dated 04.04.2018 passed by the Civil Judge, Junior Division, Sikar in Civil Miscellaneous Case No.147/2015 whereby the application under Order 9 Rule 13 CPC was allowed and consequently the ex-parte decree dated 15.04.2015 was set aside. 2. Brief facts giving rise to this revision petition are that the plaintiff-petitioner filed a suit for ejectment and permanent injunction on 06.08.2014 against the respondent-defendant. When respondent-defendant was not present in the trial court, the suit proceeded ex-parte vide order dated 15.10.2014. Thereafter, the suit was decreed ex-parte on 15.04.2015. On 31.08.2018, defendant-respondent submitted an application under Order 9 Rule 13 CPC for setting aside ex-parte judgment and decree dated 15.10.2014 on the ground that the summons were not duly served upon him. Therefore, he was unable to appear in the Court. It is prayed that ex-parte decree dated 15.10.2014 be set aside. Reply to the application filed by the plaintiff-applicant wherein it is stated that in compliance of the decree dated 15.10.2014, plaintiff has already taken possession of the disputed property by executing the decree. The defendant-respondent was residing in the same premises. But he deliberately refused to receive the summons. After that the Court adjourned the proceedings many times. And ultimately when the defendant-respondent failed to appear in the Court, ex-parte decree was passed. Therefore, the application under Order 9 Rule 13 CPC is liable to be dismissed. The Trial court after hearing both the parties set aside the exparte decree vide impugned order dated 04.04.2018. 3. Hence, this revision petition. 4. I have heard learned counsel for the petitioner. 5. It is submitted by the learned counsel for the petitioner Shri Om Prakash Sheoran that the view taken by the trial court that the summons were affixed on the east side of the house whereas as per the site-plan, there was no gate towards the eastern side. It could be a mistake made by the process server but this not a ground to set aside the ex-parte decree. It is also submitted that the defendant has no title over the disputed property and on merits he has no case. It is further submitted that the possession of the disputed property has already been taken by the plaintiff by executing the decree impugned. 6. It is also submitted that the defendant has no title over the disputed property and on merits he has no case. It is further submitted that the possession of the disputed property has already been taken by the plaintiff by executing the decree impugned. 6. On the other hand, learned counsel for the defendant-respondent has submitted that the trial court has considered each and every aspect of the matter. Indisputably, there is no gate towards eastern side of the property but process server endorsed on the summons that the summons were affixed on the eastern gate of the house. This fact itself shows that the process server has not gone to the disputed property. It is also submitted that against the same process server, there are so many complaints. 7. I have considered the rival submissions made by learned counsel for the parties and perused the material available on record. 8. In the case of Sushil Kumar Sabharwal Vs. Gurpreet Singh & Others (2002) 5 SCC 377 , the Hon’ble Apex Court has observed 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. Gurpreet Singh & Others (2002) 5 SCC 377 , the Hon’ble Apex Court has observed 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. 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 acknowledgment, 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. 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. 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 of 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.” 9. Keeping in view the above legal position, it is clear that the process server did not effect service of the summons upon the defendant according to the provisions of Order 5 Rule 17 C.P.C. There is nothing on record to show that on an alleged refusal of the defendant to accept the summons, the process server affixed a copy of the summons along with copy of the plaint on the wall of the premises. But on the contrary, it was endorsed on the back of the summons that the summons were affixed on the right door of the house of the defendant and admittedly on the eastern side, no such door existed. 10. Since the defendant was not duly served, therefore, the fact that possession of the disputed property has been obtained by the plaintiff in execution proceedings does not go to the root of the matter. In addition to it, the argument that the defendant has no right, title or interest in the disputed property is not relevant at this stage. The controversy between the parties is yet to be decided during trial. 11. In view of the above, in my considered opinion, the learned trial court has committed neither any material irregularity nor any jurisdictional error while passing the impugned order. I find no merit in the revision petition and the same is liable to be dismissed. 12. Resultantly, the revision petition is dismissed.