IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 96 of 2011. Date of decision: 13.7.2011 Rabinder Kaur ….Petitioner. Versus Iqbal Kaur Sandhu and others ….Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Ms, Sunita Sharma, Advocate. For the respondents 1 and 2: Mr. Narender Sharma, Advocate. For the respondent No.3.: Mr. Umesh Kanwar, Advocate. _________________________________________________ Deepak Gupta, J. (Oral) 1. By means of this petition, the petitioner has challenged the order dated 13.1.2011 passed by the learned Civil Judge (Jr. Division) Solan rejecting the application filed by the present petitioner for recalling the order whereby she was proceeded against ex-parte. 2. Briefly stated the facts of the case are that respondents 1 and 2 filed a suit against the present petitioner and respondent No.3 Harbinder Singh (hereinafter referred to as the defendants). Alongwith the suit an application for interim relief was also filed and on 10.09.2010 the learned trial Court passed an ad- interim order allowing the application and directed that 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 notice be served upon the defendants for 28.09.2010. It would be pertinent to mention that it was also stated in this order that the order would be subject to compliance of Order 39 Rule 3 CPC. On 28.09.2010 the learned trial Court noted that summons issued to respondent No.3 herein i.e. defendant No.1 before the trial Court were received back with the report that mother of defendant No.1 had stated that her son is out of the country and refused to take summons. The learned trial Court proceeded ex-parte against him. I have been informed at the bar that respondent No.3 has already filed an application for setting aside the ex-parte order before the learned trial Court. 3. As far as defendant No.2 is concerned, it was reported that defendant No.2 had refused to accept and sign the summons as such she was deemed to have been served. The case of the petitioner is that the report of the process server is manipulated. A copy of the summon has been placed on record according to which the process server stated that he had gone to the back side of house No.234 in Sector 9-C and one lady who had stated that she is Rabinder Kaur first came out but refused to take summons on the pretext that she had to consult her husband. Thereafter, they refused to accept the summons. Normally, such a report should have been 3 accepted but the witness to the report is H.P.S.Shergil, who is stated to be husband of plaintiff No.2. 4. Be that as it may, the process server also did not affix the summons. In case, a party refuses to accept the summons then the process server not only has to make the said report but is also required to affix the summons on the residence of the defendant. Order 5 Rule 17 of the CPC reads as follows:- “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 acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant (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.” This clearly indicates that if the defendant or his agent refuses to accept the summons then the Process Server must affix a copy of the summons on the outer door or 4 some other conspicuous part of the house in which the said defendant ordinarily resides. He also in his affidavit has to state that the said summons had been so affixed. In this behalf reference may be made to the judgement of the Apex Court in Sushil Kumar Sabharwal vs. Gurpreet Singh and others (2002) 5 SCC 377 wherein the Apex Court has clearly held that when a defendant refuses to accept the summons, the Process Server must affix and state in his report that he had affixed the summons and the copy of the plaint on the wall or other conspicuous part of the residence of the defendant. For this reason alone the petition is allowed. Even otherwise, the Court should be liberal in these matters and permit the defendants to contest the case on merits especially where, like in the present case, they put in appearance on the next date itself. 5. In view of the above discussion, the petition is allowed and the ex-parte proceedings against the present petitioner-defendant No.2 before the learned trail Court are set-aside. Defendant No.2 must file the written statement latest by 16th August, 2011 or on the next date fixed before the learned trial Court, which ever is later. The petition is disposed of accordingly. No order as to costs. 13th July, 2011 (Deepak Gupta) ™ Judge.