IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 292 of 2011 Date of decision: 18.10.2011 Bishan Dass Petitioner. Versus Raj Kumar Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No, For the petitioner: Mr. Vikrant Chandel, Advocate. For the respondent: None. Deepak Gupta, J. (oral) 1. This petition is directed against the order dated 3rd August, 2010 passed by the learned Civil Judge (Sr. Division), Kangra whereby he rejected the application filed by the present petitioner (hereinafter referred to as the defendant) for setting aside exparte order dated 25.09.2003 and for condoning the delay in filing the application for setting aside the said order. 2. The undisputed facts are that respondent Raj Kumar filed a suit against the present petitioner Bishan Dass and his brother Mehar Singh. In the said suit the defendant Bishan Dass was proceeded against ex-parte and thereafter an ex-parte order was passed against the petitioner on 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes, 2 25.09.2003. The petitioner filed the application for setting aside the ex-parte order on 22.3.2005 in which he stated that he had not been served properly and therefore the order whereby he was proceeded against ex-parte was wrong. It is apparent that in the suit when summons were issued to the petitioner the same were sought to be served upon the wife. The wife refused to accept service. The applicant while appearing in the witness box stated that his wife had told the Process Server that her husband was serving at Parwanoo and he should be served there. However, the wife while appearing in the witness box as AW-3 gives a different version. According to her no person ever brought the summons to her. Thus the husband and wife are taking totally contradictory stands. 3. The process server was examined as AW-4 and he while appearing in the witness box stated that he visited the house of both the defendants Bishan Dass and Mehar Singh. These two persons were not found there but their wives were present in the house. He admitted that when he offered the summons and the copy of the plaint and application to the wives of the applicant and his brother Mehar Singh, the wives refused to accept the same. In fact a suggestion was put to the Process Server that thereafter he affixed the summons on the home. He admitted the said suggestion to be correct. Thus service was complete in terms of Order 5 Rule 19 of the CPC. 3 4. As rightly observed by the learned trial Court it is not understandable as to what was the need for the applicant to examine the process server when according to him the service was not proper. Be that as it may, once the Process Server has been examined and has stated that when the family members refused to accept the summons he affixed the same on the last known address. His version has to be accepted. Even as per the version of the petitioner his wife was aware about the summons and even though she may not be aware about the details of the case she could have informed her husband that somebody from the Court had come to serve summons upon him. He should have then immediately taken the steps to find out about the Court case but he remained silent for almost two years and filed the application thereafter. Therefore, I find no merit in the petition, which is accordingly rejected. No costs. 18th October, 2011. (Deepak Gupta) ™ Judge.