JUDGMENT : Sanjay Kumar Dwivedi, J. Heard Mr. Atanu Banerjee, learned counsel appearing for the petitioner and Mr. Ashish Verma, learned counsel appearing for the opposite party Nos. 3 to 5. 2. Notice upon rest of the opposite party Nos. 1 and 2 have already been served, however, they have chosen not to appear. With a view to provide one more opportunity to opposite party Nos. 1 and 2 the matter was adjourned on 24.03.2025 and further on 22.04.2025 in spite of that they have not appeared, as such this petition is being heard in absence of opposite party Nos. 1 and 2. 3. This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 02.03.2024 passed by learned Civil Judge (Senior Division) – IX, Deoghar in Misc. Case No.75 of 2023 arising out of Original Suit No.34 of 2013 whereby the petition dated 26.09.2023 filed under Order – IX Rule 13 of CPC on behalf of the judgment debtor Nos.3 to 5 (respondent Nos.3 to 5) for setting aside ex-parte judgment dated 29.07.2022 and decree dated 10.08.2022 passed in Original Suit No.34 of 2013 by learned Civil Judge (Senior Division) – IX, Deoghar has been allowed and the said ex-parte judgment dated 29.07.2022 and decree dated 10.08.2022 passed in Original Suit No.34 of 2013 has been set aside and the said suit has been restored. 4. Mr. Atanu Banerjee, learned counsel appearing for the petitioner submits that the petitioner/plaintiff filed a plaint dated 22.03.2013 in the Court of learned Subordinate Judge, 1 st / Civil Judge (Senior Division) – I, at Deoghar against one Sambhu Pujhar and four others for a decree directing defendants/proforma defendants simultaneously to execute and register sale deed in favour of plaintiff on acceptance of the balance consideration with delivery of possession of the suit property in favour of the plaintiff. He submits that the said suit was filed being Title Declaratory Suit No.34 of 2013 and it was alleged therein that acquisition of right, title and interest over the suit land and the cause of action on the date of execution and registration of the agreement for sale of the suit property between the plaintiff and the defendants in part performance of contract of sale of the suit property on 19.03.2012 and 26.03.2012, the date of sign and transmission through postal service of the registered legal notice on behalf of the plaintiff on 07.04.2012, when defendants gave reply and continuing thereafter. The schedule suit plot being an area of 14 acres 68 decimals appertaining to settlement plot No.295 in Mouza – Sirsa within Jamabandi No.19, Mohanpur Police Station in the District of Deoghar was the cause of action to institute the said suit. The summon was issued to the defendants and the defendant No.1 Shambhu Pujhar appeared and filed written statement denying the averments made in the plaint. The other defendants, who were also noticed, did not choose to appear despite issuance of notice through registered post on 26.09.2014. On 06.09.2014, the order was passed to post the case on 19.11.2014 with direction to plaintiff to comply the previous order. The order dated 02.03.2015, passed in Original Suit No.34 of 2013 recording a finding of valid service and to proceed ex-parte against defendant Nos.3 to 5 and thereafter the learned Court has proceeded in accordance with law and passed the judgment on 29.07.2022. On this ground, he submits that there is latches on the part of the opposite parties/defendants and the learned Court has rightly proceeded and by the impugned order the judgment and decree has been recalled and the suit has been restored which is causing prejudice to the petitioner/plaintiff. He submits that once the notice has already been effected and intentionally the opposite party herein has not appeared in the suit the learned Court in that background has wrongly passed the order. He submits that once the notice has been issued and even in absence of any acknowledgment it is deemed to be validly served. He submits that once the notice has already been effected and intentionally the opposite party herein has not appeared in the suit the learned Court in that background has wrongly passed the order. He submits that once the notice has been issued and even in absence of any acknowledgment it is deemed to be validly served. To buttress this argument, he relied in the case of Parimal versus Veena @ Bharti reported in (2011) 3 SCC 545 and submits that once the notice is deemed to be validly served and recalling of the ex-parte judgment will prejudice the case of the petitioner and in view of that the learned Court has wrongly passed the order. On this ground, he submits that the impugned order may kindly be set aside. 5. On the other hand, Mr. Ashish Verma, learned counsel appearing for the defendant/opposite party Nos.3 to 5 submits that in the suit opposite party Nos.3 to 5 are the main contesting party, however, they have been treated as proforma defendants and the suit land is belonging to the opposite party Nos.3 to 5. He further submits that due to absence of opposite party Nos.3 to 5 Shambhu Pujhar has taken benefit of that and has created so many false and fabricated documents and he has also concealed the registered revocation of power of attorney dated 22.09.2010. He submits that the power of attorney was already revoked on 22.09.2010, however, he has executed a sale deed in favour of the petitioner/plaintiff on 02.05.2011. He submits that intentionally Shambhu Pujhar was made main contesting defendant and opposite party Nos.3 to 5 who are the contesting defendant has been shown as proforma respondent in the suit. He further submits that the notices have not been served upon the opposite party Nos.3 to 5 and they are residing at Kolkata. He further submits that the learned Court in this background has rightly set aside the ex-parte judgment and decree and restored the suit and there is no illegality in the impugned order. 6. In view of above submission of learned counsel appearing for the parties, the Court has gone through the materials on record and finds that admittedly the power of attorney of Shambhu Pujhar was revoked by the opposite party Nos.3 to 5 by way of registered revocation dated 22.09.2010 brought on record by way of filing counter affidavit. 6. In view of above submission of learned counsel appearing for the parties, the Court has gone through the materials on record and finds that admittedly the power of attorney of Shambhu Pujhar was revoked by the opposite party Nos.3 to 5 by way of registered revocation dated 22.09.2010 brought on record by way of filing counter affidavit. The entire order sheet have been brought on record and in the order dated 02.03.2015 the learned Court has accepted the notice as validly served only because it was issued by the registered post, however, there is no receiving of any execution of the said notice or tamila. Thus, it is clear that in absence of any proper receiving of the execution the notice has been deemed to be validly served by the learned trial court and pursuant to that the ex- parte decree has been passed against the opposite party Nos.3 to 5. The ex-parte judgment and decree has been annexed with the CMP as Annexure-5 and in the entire judgment of ex-parte decree there is no discussion as to how the notice upon the opposite party No.3 to 5 has been effected, meaning thereby in absence of any cogent evidence of service of notice on the record ex-parte proceeding has taken place. No evidence has been led on behalf of the petitioner/plaintiff that the opposite party Nos.3 to 5 were having knowledge of pendency of the original suit being OS No.34 of 2013. If the proceeding was fixed as ex-parte against the opposite party Nos.3 to 5, the satisfaction of learned Court on the service was one of the mandatory aspect. There is no finding or whisper regarding satisfaction of the learned trial court about non-service of the notice upon the opposite party Nos.3 to 5 in the ex-parte deciding the suit and further there is no finding that they were avoiding the service despite the repeated efforts by the Court. For proceeding ex-parte, it is a duty of the learned trial court to record its satisfaction that the opposite party was avoiding the service of notice and even the learned Court has not framed any issue on that point in deciding the said suit ex-parte. For proceeding ex-parte, it is a duty of the learned trial court to record its satisfaction that the opposite party was avoiding the service of notice and even the learned Court has not framed any issue on that point in deciding the said suit ex-parte. The learned Court in the impugned order has also taken note of the order dated 02.03.2015 by which the notice was said to be validly served upon the opposite party Nos.3 to 5 and has given the finding that there is no mention of postal receipt in the said order dated 02.03.2015. There is no service report of the said notice sent through registered post. The Court did not opt for any substituted services and in this background the learned Court has been pleased to set aside the ex-parte judgment and decree and restored the suit and merely on technicalities the Court should not shut out the cases. 7. So far Order – IX Rule 13 of CPC is concerned, it is meant for setting aside the ex-parte decree and the court should not shut out cases on mere technicalities, but rather afford opportunity to both the sides and thrash out the matter on merits. The court cannot let the party suffer due to negligent or fault committed by their counsel. 8. So far the judgment relied by Mr. Banerjee, learned counsel appearing for the petitioner in the case of Parimal versus Veena @ Bharti (supra) is concerned in that case the law on the point of notice has been discussed. 9. What has been discussed here-in-above, it is crystal clear that the learned Court has found that there is no postal receipt and any other document on the record to suggest that the notice upon the opposite party Nos.3 to 5 have been served properly, as such the judgment in the case of Parimal versus Veena @ Bharti (supra) is not helping the petitioner herein. 10. In view of above facts, reasons and analysis, the Court finds that there is no illegality in the impugned order, as such this petition is dismissed. 11. The restored suit shall be decided in accordance with law without prejudice to this order as this order has been passed only considering the parameters of Order – IX Rule 13 of CPC.