ORDER : 1. Petitioner has filed this petition under Article 227 of the Constitution of India challenging the order dated 01.07.2021, passed in Miscellaneous Civil Appeal No. 9 of 2021, whereby learned 4th Additional District Judge, Durg, District – Durg dismissed the appeal filed under Order 43 (1)(d) of C.P.C. 2. Facts relevant for disposal of this petition are that respondent No.1/plaintiff filed a civil suit for declaration of title and permanent injunction as well as damages on the ground mentioned therein. Petitioner was impleaded as defendant No.2 in civil suit. Upon filing of civil suit, learned trial Court issued notice to the defendants including petitioner. Notice sent to petitioner/defendant No.2 was served upon wife of defendant/petitioner and service report was enclosed in the records. Learned trial Court proceeded exparte against defendant No.2/petitioner and after recording of evidence of plaintiff, passed an ex-parte judgment and decree against defendants therein including petitioner/defendant No.2. 3. Petitioner/defendant No.2 filed an application under Order 9 Rule 13 of C.P.C. for setting-aside the ex-parte judgment and decree primarily on the grounds that there was no proper service of notice as the notice sent by learned Court was not served upon defendant No.2 and further pleaded that the plaintiff/respondent No.1 was aware of the correct address of petitioner because petitioner is residing near the house of respondent No.1/plaintiff but in cause title of suit, the house number was not mentioned and further it is erroneously mentioned as resident of near Shiv Temple, Vaishali Nagar, Bhilai. Petitioner is not residing at Vaishali Nagar but is residing at Shanti Nagar, Bhilai. Nonmentioning of the correct address is with ill will. Learned trial Court issued notice on the application under Order 9 Rule 13 of C.P.C.. Respondent No.1/plaintiff caused her appearance, submitted reply to the application under Order 9 Rule 13 of C.P.C. denying the pleading of non-service of notice upon defendant No.2/applicant. Learned trial Court while considering the application under Order 9 Rule 13 of C.P.C., documents placed on record as also the reply submitted by respondent No.1/ plaintiff, dismissed the application under Order 9 Rule 13 of C.P.C. vide order dated 16.02.2021 observing that notice was served upon wife of petitioner, who is residing jointly and the service report bears signature of the wife and arrived at a conclusion that there was proper service of notice. Order rejecting the application under Order 9 Rule 13 was put to challenge in an appeal filed under Order 43 Rule 1 (d) of C.P.C. before the Appellate Court. Learned Appellate Court also recorded finding that notice was served upon wife of defendant No.2/petitioner, who is residing jointly with him and held that there was proper service of notice and dismissed the appeal vide impugned judgment dated 01.07.2021 against which this present petition is filed. 4. Learned counsel for petitioner submits that petitioner has taken very specific plea in the application under Order 9 Rule 13 of C.P.C. that respondent No.1 was well aware of the correct address of petitioner/defendant No.2. However, in the plaint correct address of petitioner with house number is not mentioned but it is mentioned R/o. Vaishali Nagar, near Shiv Temple, Bhilai. In the notice, the same address was mentioned, however, the service of notice upon petitioner as per service report submitted by process server is the service of notice at House No. 135, the service report is submitted after obtaining signature from some other person. He contended that it was pre-planned for not serving the summons of suit upon defendant No.2/petitioner. Statement of process server is not recorded. Learned Court below only considered that notice was rightly served upon petitioner/defendant No.2 by process server, however have not taken into consideration that in the pleadings under Order 9 Rule 13, the service report submitted by process server itself is under question, as it is stated that there was no service of summons upon defendant No.2 in accordance with law. In support of his contention, learned counsel has placed reliance upon the judgment of High Court of Madhya Pradesh in case of Ram Shiromani Mishra Vs. Shiv Mohan Singh, reported in 1996 LawSuit (MP) 553 and the judgment of High Court of Andhra Pradesh in case of Gulnar Gulabi Vs. Tasneem Sulthana, decided on 13th October 2016 in C.M.A. No. 259 of 2016. 5. Learned counsel for respondent No.1 opposes the submission of learned counsel for petitioner and would submit that there is concurrent finding of fact by both the Courts below on the fact of service of summon/notice issued by learned trial Court in the name of defendant No.2/petitioner which was accepted by wife and therefore, the submission of learned counsel for petitioner/defendant No.2 is not correct. He submits that according to the service report placed on record by process server, the notice was duly served and there was signature of wife of petitioner/defendant No.2. He placed reliance upon the judgment of Supreme Court in case of M/s. Garment Craft Vs. Prakash Chand Goel, reported in AIR 2022 SC 422 . 6. Learned counsel for respondent No.7 would submit that petitioner and respondent No.1 are the main contesting parties. He however, pointed out that the learned trial Court has not adopted the proper procedure for deciding the application under Order 9 Rule 13 of C.P.C. 7. I have heard learned counsel for parties and perused the documents placed on record. 8. The record of civil suit as also the record of miscellaneous judicial case is available. Original civil suit is numbered as C.S. No. 61-A/ 2015. Civil suit was filed on 12.03.2015. Notice were issued and last notice was issued on 13.05.2015 and case was fixed for 28.07.2015. Notice issued to defendant No.2 was reported to be served upon his wife. On 29.09.2015, the learned trial Court recording service of notice upon wife of defendant No.2, proceeded ex-parte against defendant No.2/petitioner. Thereafter ex-parte judgment was passed on 29.09.2018 and decree was signed on 30.10.2018. 9. In the plaint, address of petitioner/defendant No.2 was mentioned as “Resident of near Shiv Temple, Vaishali Nagar, Bhilai, Tahsil and District -Durg. Copy of service report is also available wherein the process server mentioned service of notice upon wife of defendant No.2, co-sharer residing in the house at House No.135. 10. Order -5 of C.P.C talks of issue and service of summons. Order 5 (1) deals with summons. Order 5 Rule 15 of C.P.C. talks of “where service may be on an adult member of defendant’s family”. Order 5, Rule 15 is extracted below for ready reference. “15. Where service may be on an adult member of defendant’s family.- Where in any suit the defendant is absent from his residence at the time when the service of summons 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 he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation: A servant is not a member of his family within the meaning of this rule.” 11. Provision under Order 5, Rule 15 talks of circumstances on which the service is to be affected upon the adult member of family. From perusal of the service report it does not appear that process server has recorded such finding that there is no likelihood of noticee being found at the residents within the reasonable time, therefore, the service is affected upon the adult member. 12. In case at hand there is specific pleadings in the application that there is no service of notice upon defendant No.2 and service report is signed by some other person. In the aforementioned facts of the case when the service of notice is disputed by one party and service of notice is asserted by other party based on the service report, is prima-facie a disputed question of facts and therefore, the learned trial Court ought to have conducted enquiry by adopting the procedure applicable to the civil suit. 13. The proceeding under Order 9 Rule 13 of C.P.C. is miscellaneous proceeding and therefore, according to the provision under Section 141, the procedure provided in this Code in regard to suit has to be followed. Provision under Section 141 of C.P.C. is extracted below for ready reference :- “141. Miscellaneous proceedings.- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. Explanation: In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.” 14. Perusal of proceeding under Order 9 Rule 13 of C.P.C. would show that learned trial Court while dealing with the application under Order 9 Rule 13 of C.P.C. filed on 14.01.2029. Notices were issued on 21.01.2019. No issues were framed of disputed fats, case was not fixed for producing evidence to prove the pleadings in the application under Order 9 Rule 13 of C.P.C. of non-service of notice and only based on the pleadings and the documents placed on record, passed the order on 16.02.2021. 15. Notices were issued on 21.01.2019. No issues were framed of disputed fats, case was not fixed for producing evidence to prove the pleadings in the application under Order 9 Rule 13 of C.P.C. of non-service of notice and only based on the pleadings and the documents placed on record, passed the order on 16.02.2021. 15. Perusal of the proceeding recorded by the Court in proceeding under Order 9 Rule 13 would show that notice to respondents were issued, some of the non-applicants appeared and some not and therefore ex-parte proceedings drawn on non-applicants No.3, 4, 5 & 6. On next date case fixed for reply to application by non-applicant No.1, 2 and 7. On further date 29.05.2019, non-applicant No.1 submitted oral reply and on next date non-applicant No.2 stated not to give reply and case was fixed for arguments and order. Thereafter case was fixed for record of civil suit. Record received as per order sheet on 14.01.2021 and again case was fixed for arguments and thereafter hearing argument on 16.02.2021 order was passed on same day. 16. When the procedure to be followed in the miscellaneous proceedings, is of the suit as provided under Section 141 CPC and the proceeding under Order 9 Rule 13 of C.P.C. has been held to be a miscellaneous proceedings, the learned trial Court should have followed the procedure provided in the C.P.C. for trying the suit. Learned trial Court while dealing with an application under Order 9 Rule 13 of C.P.C. has to decide the disputed question of facts in accordance with the procedure prescribed under C.P.C., which was not followed. Learned Appellate Court also has not considered this aspect of this case and has only taken note of the fact that process server has submitted service report showing service of notice upon wife of defendant No.2 residing in shared house. 17. Learned Appellate Court also has not considered this aspect of this case and has only taken note of the fact that process server has submitted service report showing service of notice upon wife of defendant No.2 residing in shared house. 17. In view of pleadings and the grounds raised in the application under Order 9 Rule 13, the prime consideration for the Court below should be whether the service report submitted by process server is in accordance with law or not which could have been decided, by framing issue/ issues, recording of evidence of the parties granting opportunity to the petitioner to prove the pleadings of the application under Order 9 Rule 13 of C.P.C. Proof of proper service of notice is more required when specific case of petitioner is that address of defendant No.2 in the plaint is wrongly mentioned. The decision relied upon by the learned counsel for respondent in M/s. Garment Craft (Supra) is on different facts. 18. The High Court of Madhya Pradesh in case of Ram Shiromani Mishra (Supra) while dealing with the revision petition against dismissal of application under Order 9 Rule 13 of C.P.C. observed thus :- “24. It is not indispute that Claims Tribunal did not follow the procedure under Order 9, Rule 13 of C.P.C, the applicant was disputing the service of summons. He was further disputing the fact that he had knowledge of pendency of proceedings against him. He denied that he had engaged any counsel in his case. Thus an application under Order 9, Rule 13 of C.P.C. read with Rule 240 of 'the Rules' lay. The applicant was entitled to prove these facts even if the non-applicants denied these facts. The question of 'sufficient cause' for non-appearance could be decided in accordance with the provisions of Order 9, Rule 13 of C.P.C. The Tribunal did not record any evidence. It dismissed the application by merely reading it and disbelieving the contents of the application. No opportunity was given to applicant to prove his case. The Claims Tribunal not only violated the Order 9, Rule 13 of C.P.C. but also rode a roughshod over elementary principles of natural justice. Such judicial arrogance is not given to any officer presiding over a judicial proceedings. His findings cannot be sustained as they arc not based on any evidence.” 19. The Claims Tribunal not only violated the Order 9, Rule 13 of C.P.C. but also rode a roughshod over elementary principles of natural justice. Such judicial arrogance is not given to any officer presiding over a judicial proceedings. His findings cannot be sustained as they arc not based on any evidence.” 19. High Court of Madhya Pradesh in case of Parikshit, S/o. Jay Prakash Agrawal & Anr. Vs. M.P. Rajya Sahakari Bank Maryadit, Nihalpur Branch, Indore reported in 2010 (2) M.P.L.J. 218 observed that “undisputedly in absence of a reply to or a trial of the application filed under Order 9 Rule 13 CPC the same could not have been rejected by the trial Court unless Court was of the opinion that it is misconceived.” 20. Division Bench of High Court of Delhi while dealing with issue with regard to application under Order 9 Rule 13 in case of Satish Chandra Vs. Sanjay Katyal, reported in 1997 SCC OnLine Del 374 has observed as under :- “(6) Learned Counsel for the appellant contended that evidence on Issue No. 1 of limitation should start first, which is a jurisdictional issue and calling upon the appellant to lead evidence on Issue No. 2 first and then postponing the evidence of respondents on other issues is likely to cause prejudice to the appellant. It was contended that illustrations 1 and 5 in para 120 at page 1817 of the report in Shah Babulal Khimji Vs. Jayaben D. Kania (1981) 4 SCC 8 fully covers the appellants point that doing or undoing a limitation question when one has acquired a vested right is judgment within the meaning of Letters Patent Clause 10, applicable to this Court. (7) Neither illustration 1, nor illustration 5 relate to the question before us. The Supreme Court in para 122 observed that illustrations given are by way of a sample and it was not possible to give exhaustive list as may cover all possible cases where order may or may not amount to judgment. Each case will have to be decided in the light of the tests, observations and principles enunciated in the judgment in Shah Babulal Khimji's case (supra). (8) There can be no manner of doubt that in order to decide IA No.9245/92 filed under Order IX Rule 13, Civil Procedure Code etc. Each case will have to be decided in the light of the tests, observations and principles enunciated in the judgment in Shah Babulal Khimji's case (supra). (8) There can be no manner of doubt that in order to decide IA No.9245/92 filed under Order IX Rule 13, Civil Procedure Code etc. the aforesaid issues including issue of limitation will have to be decided together, after the parties have led their respective evidence. Impugned order requiring the appellant to adduce evidence on Issue No. 2 first is only procedural in nature. Neither this order puts an end to the proceedings nor to the application under Order Ix Rule 13, CPC. The effect of the order, if not complied with cannot result in terminating the proceedings and, therefore, it cannot be regarded as a judgment within the tests laid down by Sir White, C.J. in T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar, (1912) ILR 35 Madras 1, as approved in Shah Babulal Khimji's case (supra). 21. From aforementioned discussions, it is apparent that the application under Order 9 Rule 13 C.P.C. is miscellaneous proceedings according to the provision under Section 141 of C.P.C. proper enquiry is not conducted. The procedure provided in the Code of Civil Suit in regard to suit has to be followed for deciding the miscellaneous proceedings i.e., framing of issues, recording evidence of the parties and then to pronounce order. Learned Court below while dealing with the application under Order 9 Rule 13 has not formulated any issues, nor fixed the case for recording of evidence of parties and have decided the application based on the pleadings in application U/s. 9 Rule 13, oral argument and considering the service report submitted by process server (disputed by petitioner). As the procedure prescribed is not followed by learned Court below while considering the application under Order 9 Rule 13, I am of the considered view that the order passed on 16.02.2021 on an application under Order 9 Rule 13 of C.P.C. is in violation of provision under C.P.C. and therefore, it is not sustainable. The learned Appellate Court also failed to consider this aspect of this case. 22. For the forgoing discussions, petition is allowed. The impugned order dated 01.07.2021, passed in Misce. Civil Appeal No. 9 of 2021 as also the order dated 16.02.2021, passed in Misce. Civil Case No. 7 of 2019 are set-aside. The learned Appellate Court also failed to consider this aspect of this case. 22. For the forgoing discussions, petition is allowed. The impugned order dated 01.07.2021, passed in Misce. Civil Appeal No. 9 of 2021 as also the order dated 16.02.2021, passed in Misce. Civil Case No. 7 of 2019 are set-aside. The matter is remitted back to the learned Sixth Civil Judge, Class-II, District - Durg for deciding the Misc. Civil Case No. 7 of 2019 in accordance with law afresh.