ORDER : (Nupur Bhati, J.) The instant writ petition has been preferred by the petitioner under Article 226 and 227 of the Constitution of India with the following prayers:- i) by an appropriate writ order or direction the impugned order (Annexure-7) dated 11.3.2014 and the consequential proceedings may kindly be quashed and set aside and the petitioner may kindly be permitted to contest the Civil Suit No. 13/2001 by submitting his written argument and adducing evidence according to law. ii) Any other appropriate writ, direction, order or relief which is found favourable to the petitioner in the facts and circumstances of this case may kindly be granted. 2. Brief facts of the case are that the petitioner is a tenant of the shop situated in Pansari Bazar, old Dhanmandi, Bhilwara and prior to him his father Sujanmalji had occupied the shop in question in the capacity of a tenant. In respect of this shop late Shri. Bhupal Singh filed a partition suit in the District Court Bhilwara on 08.12.1983 and along with the suit, an application under Order 40, Rule 1 Civil Procedure Code 1908 (hereinafter referred to as CPC in short) was submitted for appointing an official receiver and accordingly one advocate Shri. Satya Narayan Derashree was appointed as an Official receiver in the suit on 04.03.1986. However, Shri. Satyanarayan Derashree was selected in Rajasthan Higher Judicial Services and therefore, in his place advocate Shri. Bheru Lal Bafna was appointed as the official receiver. Shri. Bheru Lal Bafna in the capacity of an official receiver of the property of Bhupal Singh filed a suit for eviction and for recovery of arrears of rent against the petitioner regarding the shop in question. This suit was decreed ex-party by the Court of learned Additional Civil Judge (Junior Division) No.2, Bhilwara on 20.04.2004(Annexure1). 3. The petitioner got the information about the ex-party decree when he received the notice of the Execution proceedings for the first time on 08.03.2011. After receiving the notices of the execution proceedings on 08.03.2011, the petitioner obtained the certified copies of the judgment and the order sheets. Thereafter he submitted an application dated 06.04.2011 (Annexure-2) for setting aside the ex-party decree by invoking the provisions of Order 9, Rule 13 CPC read with section 151 CPC 1908 and also submitted an application under section 5 of The Limitation Act, 1963 for condonation of delay. Thereafter he submitted an application dated 06.04.2011 (Annexure-2) for setting aside the ex-party decree by invoking the provisions of Order 9, Rule 13 CPC read with section 151 CPC 1908 and also submitted an application under section 5 of The Limitation Act, 1963 for condonation of delay. The application of the petitioner dated 06.04.2011 for setting aside the ex-party decree dated 20.04.2004 in Civil Suit No. 13/2011 was contested by the respondents and the learned Additional Civil Judge (Junior Division) No.2, Bhilwara after hearing the arguments of both the parties passed the order dated 19.07.2013 by which the application of the petitioner filed under Order 9, Rule 13 CPC for setting aside ex-party decree dated 20.04.2004 was dismissed. 4. The petitioner challenged order dated 19.07.2013 by filing a writ petition S.B. Civil Writ Petition No.11737/2013 and while hearing this writ petition at the admission stage, this Hon'ble Court ordered to issue notices to the respondents and by ad-interim stay order the execution proceedings were stayed. However, the writ petition was submitted under a bona fide mistake because the order dated 19.7.2013 was an appealable order and as such the above mentioned writ petition No.11737/2013 was withdrawn with the liberty to file the appeal before the District Court. 5. Thus the order dated 19.7.2013 was challenged before the District Court which was transferred to the Court of Additional District Judge No.2, Bhilwara. The Additional District Judge No.2 Bhilwara after hearing the appeal dismissed the same vide impugned order dated 11.3.2014. Hence this writ petition. 6. Learned counsel for the petitioner submits that that no summon was served personally on the petitioner nor the copy of the plaint was sent to the petitioner by post. Therefore, proper service of the summons along with the plaint was not done. He further submits that the learned trial court proceeded in this matter with haste and completed the proceedings regarding the service of summons on the first date of hearing itself which was fixed on 14.05.1999, however, the summons were issued on 25.01.1999 for the first time after registering of the Civil Suit. The certified copy of the order sheet (Annexure-3) clearly reveals that on the first date of hearing the learned trial court has observed that since no body appeared despite service to the petitioner Mohan Lal, the proceedings were ordered to be conducted ex-party. The certified copy of the order sheet (Annexure-3) clearly reveals that on the first date of hearing the learned trial court has observed that since no body appeared despite service to the petitioner Mohan Lal, the proceedings were ordered to be conducted ex-party. He also submits that the learned trial court was under a legal obligation to pass a specific and reasoned order showing the completion of service against the petitioner, but the same had not been done, which is evident from the order sheet dated 14.05.1999. He further submits that the order-sheet also does not indicate that the learned trial Court asked the peon of the Court to make a call with respect to petitioner Mohan Lal to remain present in the Court as no such call was made. 7. Learned counsel for the petitioner further submits that there is a no finding that the service has been considered to be sufficient as the summons were not personally served upon the petitioner-Mohan Lal. Therefore, this procedure adopted by the trial Court has resulted in grave injustice to the petitioner and the procedure being in violation of Order 5 Rule CPC is also illegal, He also submits that the summon alleged to be sent by the trial Court was not personally served upon the petitioner nor there is any material to show that the copy of the plaint was served upon the petitioner thus in this way, the order of the learned trial Court to proceed with the suit ex-party on 14.5.1999 was an unjust action and hence the subsequent ex-party proceedings and ex-party decree dated 20.4.2004 is illegal and deserves to be quashed and set aside. 8. Learned counsel for the petitioner also submits that the report of the process server (Annexure- 4) clearly reveals that he enquired about the shop of the petitioner through witness of the area, but, process server report (Annexure-4) does not contain name of any witness nor does it contain signature of any witness, Thus, this clearly raises a serious doubt about the truthfulness of the report of process server, because if there had been any witness, he would have definitely obtained the signature of witness and would have put the name of the witness, Therefore, the absence of signature and names of the witness renders the report process server (Annexure-4) doubtful and illegal. He further submits that the report also does not show the service of plaint upon the petitioner or affixing the plaint on the shop of the petitioner as in these circumstances the learned trial court ought to have examined the process server for satisfying itself as to whether the service of summons could be considered sufficient or not, but the learned trial court did not proceed in this manner which has resulted in passing an illegal order of proceeding the suit ex-party and has caused severe miscarriage of justice to the petitioner and has also violated the principles of natural justice. 9. Learned counsel for the petitioner further submits that the process by which the learned trial court had held the service of the summons as complete is improper, being violative of Order 5, Rule 17 of CPC and the petitioner while submitting the application for setting aside the ex-party decree dated 20.4.2004 also filed an affidavit and as such the statement on oath of the petitioner was not nullified because the process server was not examined by the trial Court on oath, and in any case even if there is an oath against oath, the trial Court ought to have set aside such an ex-party decree in the interest of justice. 10. Learned counsel for the petitioner also submits that the petitioner while contesting his application for setting aside the ex-parte decree also placed reliance on a judgment delivered by this Hon'ble Court but the same was not considered by the learned trial court as well as by the Appellate Court. Hence the order dated 19.07.2013, ex-party decree dated 20.4.2004 and the impugned order dated 11.3.2014 passed by the appellate Court deserve to be quashed. He further submits that the observation of the learned appellate Court that since the petitioner did not make any complaint of the process server to the learned District Judge, the approach of the process server as considered proper is illegal and at the same time the process server ought to have been examined who was not examined. 11. Learned counsel for the petitioner also submits that in order to do complete justice between the parties, the principles of natural justice demand that the tenant's rights to continue in the rented premises should be determined by hearing both the parties. 11. Learned counsel for the petitioner also submits that in order to do complete justice between the parties, the principles of natural justice demand that the tenant's rights to continue in the rented premises should be determined by hearing both the parties. Therefore, the learned trial court as well as the learned appellate Court, while keeping the principles of natural justice in mind, ought to have allowed the application of the petitioner moved under Order 9, Rule 13 CPC in the interest of justice, Since, such a course has not been adopted by the learned courts, the impugned order dated 11.3.2014 (Annexure-7), order dated 19.7.2013 (Annexure-5) and ex-party decree dated 20.4.2004 (Annexure-1) which have caused severe injustice to the petitioner deserve to be quashed and set aside in the interest of justice. The learned counsel for the petitioner places reliance on the judgment passed by the Hon'ble Apex Court in the case of Shushil Kumar Sabharwal v. Gurpreet Singh And Others reported in (2002) 5 SCC 377 . The relevant portion of the judgment is reproduced here as under: "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-party. 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-party. 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. 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. 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." Learned counsel for the petitioner further places reliance on the judgment passed by the Hon'ble Apex Court in the case of Nahar Enterprises v. Hyderabad Allwyn Ltd. and Ors. reported in (2007) 9 SCC 466 . The relevant portion of the judgment is reproduced here as under: "(8) The Learned Counsel appears to be correct. reported in (2007) 9 SCC 466 . The relevant portion of the judgment is reproduced here as under: "(8) The Learned Counsel appears to be correct. When a summons is sent calling upon a defendant to appear in the Court and file his written statement, it is obligatory on the part of the court to send a copy of the plaint and other documents appended thereto, in terms of Order 5, Rule 2 CPC. Order 5, Rule 2 of the CPC reads as under: "Copy of plaint annexed to summons - Every summons shall be accompanied by a copy of the plaint." 9. The learned Judge did not address itself the question as to how a defendant, in absence of a copy of the plaint and other documents, would be able to file his written statement. The Court, furthermore, in our opinion, committed a manifest error in so far as it failed to take into consideration that the summons having been served upon the appellant after the date fixed for his appearance, it was obligatory on its part to fix another date for his appearance and filing written statement and direct the plaintiff to take steps for service of fresh summons. This legal position is explicit in view of the provisions of Order 9, Rule 6 (1) (C) of CPC which reads: "When summons served but not in due time - if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant." 10. The court, therefore, committed an illegality in dismissing the application for setting aside the ex-parte decree. It was a fit case where the Court should have exercised its jurisdiction under Order 9, Rule 13 of CPC." 12. Per Contra Learned Senior Counsel for the respondents submits that the shop in question situated at Pansari Bazar, Near Bada Temple, Bhilwara was let out to Shri. Sujan Mal Pangadiya for a monthly rent of Rs. 12/- about 50 years back. Per Contra Learned Senior Counsel for the respondents submits that the shop in question situated at Pansari Bazar, Near Bada Temple, Bhilwara was let out to Shri. Sujan Mal Pangadiya for a monthly rent of Rs. 12/- about 50 years back. Moreover the property in question belonged to grandfather of the respondents-plaintiff and in wake of the dispute between the legal heirs, a receiver was appointed for the property of late Shri. Ajeet singh Dhariwal and the said receiver filed a suit for eviction on 25.01.1999 interalia contending that the tenant has defaulted in making payment of rent in relation to the shop in question and has made material alteration; also during the course of proceedings, the earlier receiver was changed and shri Bheru Lal Bafna was appointed as receiver on 26.08.1998, who had filed the present suit 13. Learned Senior Counsel for the respondents also submits that since at the time of filing the suit, the said tenant Sujan Mal Pangadiya had expired and the suit was filed against petitioner defendant Shri. Mohan Lal Pangadiya S/o the original tenant i.e. Sujan Mal Pangadiya who was having the possession of the shop. He further submits that after issuance of the notice by the learned Court for 14.05.1999 the Process Server namely Nemichand Regar went to the shop in question and offered the notice to Mohan Lal Pangadiya available on the shop, who after perusal of the same refused to take the notice and in such a situation, the process server affixed the notice on the wall of the shop and despite the request of the process server, persons present on the site refused to attest the same, thus, as per the aforementioned facts, the said process server submitted his report before the learned trial Court and based on the above report of the process server the learned trial Court decided to proceed ex-party. 14. Learned Senior Counsel for the respondents also submits that after recording the evidence of the plaintiff-respondents, the said suit ultimately came to be decreed vide Order dated 20.04.2004 by the learned Additional Civil Judge (Junior Division 2), Bhilwara and despite suit having been decreed on 20.04.2004, the receiver did not initiate proceedings for execution, However, said Bheru Lal Bafna also resigned from the duties of receiver on 23.06.2005. He further submits that after lapse of about 5-6 years, the family of late Shri. Ajeet Singh Dhariwal authorized the respondent No1, Sunil Dhariwal (Grandson of Shri. Ajeet Singh Dhariwal) to take care of all the properties and litigation, Thus, Shri. Sunil Dhariwal filed an execution application on 07.07.2010 to execute the decree dated 20.04.2004. 15. Learned Senior Counsel for the respondents also submits that after filing of the execution application in the Year 2010, the sale-ameen went to the shop in question for executing the warrant of possession on 17.09.2013 and when the sale-ameen visited the shop, he found that the shop in question was lying closed and vacant and some articles such as biscuits, soaps belonging to nearby shopkeeper Manohar Lal Sindhi were lying in the shop in question, thus, the sale-ameen prepared a detailed report on 17.09.2013. He further submits that a perusal of the said report of the sale-ameen shows that at the time of executing warrant of possession, the subject shop was lying closed and idle without being used by the Petitioner- Tenant and the articles belonging to Manohar Lal Sindhi were lying in the shop thus it is, therefore Clear that the Petitioner - Tenant has abandoned the shop and he is not using the same for his business. 16. Learned Senior Counsel for the respondents also submits that there were number of properties belonging to late Shri. Ajeet singh Dhariwal, which were let out to various tenants. After 2010, Sunil Dhariwal one of the legal heirs decided to take up the legal proceedings including filing execution applications in respect of all the properties after taking consent from other legal heirs and as such, a number of execution applications were filed by the undersigned in various courts. He further submits that after death of original tenant Shri. Sujan Mal Pangadiya, his son petitioner-defendant Mohan Lal Pangadiya has not carried his father's business in the disputed shop and the same is lying abandoned since a long time and that petitioner-defendant Mohan Lal Pangadiya is carrying on business of grocery store in another shop situated in the same area and he is not in requirement/need of the present shop in question. 17. 17. Learned Senior Counsel for the respondents also submits that despite of the service of the notice and the petitioner being fully aware of the legal proceedings taken up by the respondents-plaintiff, the tenant has deliberately not appeared before the learned trial Court and has kept the possession of the shop, which is of no use to him. He further submits that the petitioner-tenant has not even deposited the monthly rent of Rs. 12/- for years together till date and that the tenant has abandoned the shop and has no intention to carry on the business in the shop in question, which was let out to his father about more than 50 years ago at a meagre monthly rent of Rs. 12/-. 18. Learned Senior Counsel for the respondents also submits that the petitioner has taken up the proceedings including the application for setting-aside the ex-party decree simply with a view to harass the respondents-landlord as the petitioner has no intention to carry on business in the disputed shop and also that the present Writ petition is not bonafide and has been filed simply to deprive the respondents of taking the possession of the shop pursuant to the decree passed by learned trial Court. 19. Learned Senior Counsel for the respondents further submits that the basic contention of the Petitioner's case that as per provisions contained in Order 5, Rule 17 of CPC, it was required by the learned trial Court to send the summons vide registered AD Post and other alleged irregularities in relation to the service of summon by the process server are not only factually incorrect but also unsustainable in the eye of law, He also submits that a bare reading of Order 5, Rule 17 CPC shows that it is not mandatory for the process server to mention name and address of the person in whose presence the copy was affixed as evident from the provisions contained in Order 5, Rule 17 CPC that are circumscribed by the use of words "if any", which renders the provisions directory and hence mentioning name and address of the persons present at the time of affixation is insignificant. He further submits that in view of the detailed halfia report given by the Process Server, there remains no room for doubting the service upon the defendant-petitioner. 20. He further submits that in view of the detailed halfia report given by the Process Server, there remains no room for doubting the service upon the defendant-petitioner. 20. Heard Learned counsel for the parties; perused the material available on record and the judgments cited at the Bar. 21. This Court finds that the appellate court vide its order dated 11.03.2014 observed that the process server on 9.02.1999 effected the service of summon on the address which was provided by the petitioner itself and as mentioned in the Halfiya Report (Annexure-3) that the petitioner Mohan lal Panagdiya was present at the shop in question and refused to accept the summon after having read the same which is also proved by the process server's report which cannot be faulted; Thus the report of the process server cannot be faulted and the petitioner has also not given any evidence to prove the same that the report of process server is improper; the petitioner also stated that the process server should have been examined but the petitioner did not take any such action or availed any remedy for the same thus the petitioner cannot take such a stand at this stage. Moreover, the report of the process server has been attested by the District and Session Judge which fulfils the mandates of the Order 5, Rule 19 CPC and no further cogent reasons have been provided by the petitioner for nullifying the Process Server's Report. The Halfiya Report dated 11.02.1999 is reproduced here as under. gfYQ+;k fjiksVZ eS izkslls ljoj useh pUnz jsxj U;k;ky; HkhyokMk] dk gksdj ;g gfYQ+;k fjiksV is'k gS fd rkfey okLrs fn- 09-02-99 dks iqjkuh /kkue.Mh igqapdj ekSrfcjkuks ls eksguyky iq= lqtkuey th ikuxfM;k dh ekyw ekr djrks ckn mudh fdjk.kk nqdku ij igqapk tgka ij Lo;a eksguyky ikuxfM;k feykA ftlus lEeu iढ+dj ysus ls badkj fd;kA rc [kqYyh gqbZ nqdku ij lEeu dh ,d izfr fpidk dj pLIkk fd;k x;kA ekSds ij ekSrfcjku us rLnhd djus ls badkj fd;kA vr% Jheku dh lsok esa okn rkehy is'k gSA 22. This Court further observes that Order 5, Rule 17 CPC has been complied with while serving the summons and the contention of the petitioner that names and signature of independent witnesses have not been taken cannot sustain as the process server asked the witnesses present near the shop in question to attest their name and signature which was denied by the witnesses when process server had gone to the shop in question for effecting the service of summons. This Court also observes that the appellate court has observed that despite the presence of the petitioner at the shop in question and after having read the summons petitioner refused to accept the same, and if the aforementioned would have been false then the petitioner should have taken appropriate action regarding the same before District Judge Bhilwara but no such complaint has been filed and no action has been taken by the petitioner in regard to the same. Thus on 09.92.1999 petitioner got the information regarding the pending matter and also as per provisions of Order 5, Rule 17 CPC, the summon was also affixed which cannot be denied by the petitioner-tenant. This court further observes that the judgments on which reliance has been placed by the petitioner are having different facts than the instant case, because in those judgments the summons were not served where as in the instant case the summons were refused to be accepted by the petitioner and the process server duly affixed them on the shop in question which is evident from the report of the process server (Annexure- 4). Therefore all the conditions provided under Order 5, Rule 17 CPC have been complied with. Order 5, Rule 9 (5) and Rule 17 of the Civil Procedure Code 1908 are reproduced here as under: Order V - Issue and service of summons Issue of Summons [9. Therefore all the conditions provided under Order 5, Rule 17 CPC have been complied with. Order 5, Rule 9 (5) and Rule 17 of the Civil Procedure Code 1908 are reproduced here as under: Order V - Issue and service of summons Issue of Summons [9. Delivery of summons by Court.- (1) xxx (2) xxx (3) xxx (4) xxx (5) When an acknowledgement or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons. 17. 17. Procedure when defendant refuses to accept service, or cannot be found.-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, 2 [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 or some other conspicuous part of the house in which the defendant ordinarily resides 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. 23. This court further observes that from the above facts it is clear that the petitioner deliberately refused to accept the summon and it was well within his knowledge that the suit proceedings are going on but chose not to contest the suit, further the summons served were received back with the noting of the Process Server that the petitioner who was present at the shop in question had refused to accept the summons after reading it which were duly affixed at the shop in question. A bare look at the Order 5, Rule 9 CPC reflects that where the defendant refuses to accept the summons, the Court issuing the summons shall declare that the summons had been duly served upon the defendant. 24. A bare look at the Order 5, Rule 9 CPC reflects that where the defendant refuses to accept the summons, the Court issuing the summons shall declare that the summons had been duly served upon the defendant. 24. This court also observes that the petitioner filed an application under Order 9, Rule 13 CPC before the Additional Civil Judge No.2 Bhilwara which came to be dismissed vide order dated 19.07.2013 against which an appeal was filed before the District Judge Bhilwara and the same was dismissed vide order dated 11.3.2014 and while availing both the remedies the petitioner has not raised any issue that the copy of the plaint was not affixed along with the summons and thus the petitioner while invoking Article 226 and 227 of the Constitution of India cannot raise this issue which is apparently an afterthought. 25. This Court is conscious about the second proviso to Rule 13 Order 9 of CPC added by the 1976 amendment which provides that no court shall set aside a decree passed ex-party 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. In the instant case the petitioner had full knowledge about the suit proceedings and the next date as well because the summons were duly read by him and upon refusal were affixed on the shop in question but the petitioner chose not to contest the proceedings and thus the ex-party decree was rightly passed. 26. In view of the above observations, no case is made out and the writ petition being devoid of merit is hereby dismissed. Stay application as well as all other pending applications, if any, also stand dismissed.