JUDGMENT S.N. Srivastava, J.
1. This writ petition is directed against the order dated 18.1.2003, Annexure-9 to the writ petition, passed by Additional District Judge, Bijnore and the judgment and order dated 29.11.1999, Annexure-8 to the writ petition, passed by the Trial Court.
Plaintiff-respondent filed a suit for dissolution of marriage before the Civil Judge, Bijnore. Suit was decreed ex parte by judgment and decree dated 1.1.1994. Defendant-Smt. Munni Devi, wife of plaintiff, moved an application under Order IX Rule 13 supported by an affidavit to set aside ex parte decree on the ground that notices were not served to her and ex parte decree was passed without notice to her. An objection to the restoration application as well as to application under Section 5 of the Indian Limitation Act was filed by plaintiff-respondent denying allegations made in applications of defendant asserting that summons were personally served. Trial Court by the order dated 29.11.1999 dismissed application of petitioner under Section 5 of the Indian Limitation Act as well as restoration application. In revision said order was affirmed by the revisional Court.
2. Heard learned Counsels for the parties.
3. Learned Counsel for petitioner urged that no notice was served to petitioner personally and decree was obtained ex parte without service of notice. He relied upon Paragraph 8 of the writ petition in support of his contention. He further urged that neither any summon was served to petitioner nor petitioner put her signature on paper A-7 and process server did not file any affidavit before the Nazir, as required on Form 11 of Appendix B, under Order V Rules 16 and 18 C.P.C. Summons issued by the Trial Court were not accompanied with the copy of the petition and were also not served hence findings recorded by the Courts below are perverse and the ex parte decree is liable to be quashed.
4. In reply to the same, learned Counsel for opposite party urged that Courts below were fully satisfied with the service of notice. Summons were personally served. Courts below rightly rejected restoration application. Impugned orders are liable to be affirmed. He further urged that there is no error of law apparent on the face of record. Writ petition deserves to be dismissed.
5. After hearing learned Counsel for the parties and considering materials available on record, I am satisfied that summons were not served in accordance with law and petitioner's case that actually she did not receive any summons and decree was obtained ex parte behind back of the petitioner appears to be correct.
6. In this regard Paragraph 8 of writ petition and Paragraph 9 of the counter affidavit are relevant and are being reproduced below for ready reference :
Paragraph 8 of the writ petition "8. That no summon was tendered to the petitioner nor the petitioner had put her signature on paper A-7. The process server had not filed any affidavit as required under the rules before the Nazir of the Court, the summons issued by the Trial Court was not in accordance with rules as it was not accompanied with the copy of the petition."
Paragraph 9 of the counter affidavit "9. That the contents of Paragraph No. 8 of the writ petition are incorrect and not admitted. It is stated that summons was personally served on the petitioner and she has not dare to refuse this fact in her application submitted under the Limitation Act along with restoration application. It is further stated that the Court was fully satisfied regarding the service of summon on the petitioner as such no affidavit of process server was required at all."
7. Upon careful consideration of averments made in Paragraph 9 to the counter affidavit, it is clear that averments of Paragraph 3 of the writ petition to the effect that summons were not tendered to the petitioner nor petitioner put her signature on paper A-7 were not specifically denied. This has also not been denied that process server did not file any affidavit as required under the Rules. In view of the law of pleading as contained under Order VIII Rule 5, C.P.C., the averments made in Paragraph 9 of the writ petition shall be taken as admitted to the effect that no service of summons were personally made on defendant Order V Rules 16 and 18, C.P.G. are being reproduced below:
"16. Person served to sign acknowledgement-Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons."
"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 or the summons."
Order V Rules 16 and 18 make it clear that once process server goes to serve notice, he is required to endorse or annex the original summons on return stating time, manner in which summons were served, name and address of the persons identifying the person served and witnessing the delivery or tender of summons. The return of summons must be accompanying the affidavit as prescribed on Form No. 11 of Appendix B of C.P.C.
8. From the facts stated above, it is clear that no summons were served to defendant-petitioner in accordance with law.
9. The Legislature while prescribing procedure for service of summons under C.P.C. has taken all precautions so that summons may be served to the real person and in case of service of summons was not made to the defendant, it is open to him to contest service of summon. As in the present case the process server did not give details about persons who identified petitioner and witnesses of service of summons and affidavit of process server was also not filed, summons cannot be presumed to be served personally on petitioner. Courts below have not considered these aspects and have decided restoration application without considering relevant factors and evidence on record. Judgments of Courts below suffer from manifest illegality apparent on the face of record. The findings recorded by the Courts below are also perverse and are liable to be set aside.
10. With the result writ petition succeeds and is allowed. Impugned orders as well as ex parte decree are quashed. Now the parties will get opportunity to complete pleadings, adduce evidence and of hearing before the Trial Court. It is directed that Trial Court shall decide the suit in accordance with law within six months from the date of production of certified copy of this order.