1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR ORDER Smt. Chuki Devi & Ors. Vs. Laxminarayan (S.B. Civil Misc. Appeal No.1313/2010) Date of Order :- May 03, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Jai Raj Tantia, for the appellants. Mr.Neeraj Tiwari, for the respondent. Aggrieved by the rejection of their application under order dated 9 Rule 13 CPC, the appellants have challenged the order dated 17.04.2010 passed by the Additional District Judge (Fast Track) No.9, Jaipur City, Jaipur. Mr. Neeraj Tiwari has put in appearance on behalf of the respondent. With the consent of both the parties this case is being decided at the admission stage itself. Mr. Jai Raj Tantia, the learned counsel for the appellants, has contended that according to the appellants, the process server did not come to their house and did not tender any notice to Smt. Chuki Devi, the appellant No.1. The process server has not been examined by the court. Moreover, there is a clear cut contradiction between the witnesses, namely Amar Singh and Ghanshyam, who allegedly claimed that the process server had gone to the house of the appellants to serve notice. 2 According to the testimony of Amar Singh in his cross- examination, he admits that he was not available at the house of the appellants when the process serve had come to serve notice. According to him, subsequently the process server had come to his shop and upon a statement made by the process server, he had signed the necessary papers. According to Ghanshyam in his cross-examination, he admits that he did not hear the conversation that took place between the process server and Smt. Chuki Devi. Moreover, he claims that Rajendra Singh was present. According to Rajendra Singh, he was not present at the time when the summons were to be served upon him. Even according to the report of the process server, Rajendra Singh was not present when he had gone to his house. Therefore, the testimony of Ghanshyam is not believable on the point whether Rajendra Singh was present or not. For, his testimony is contradictory to the statement made by the process server and to his report. Therefore, according to the learned counsel, the summons were not served in accordance with order 5 Rule 17 CPC. In order to buttress this contention, he has relied upon the case of Shyam Lal & Ors. Vs. Ram Charan & Anr. [2001 (2) RLR 93]. Thus, according to the learned counsel, the learned Judge has erred in dismissing the application under Order 9 Rule 13 CPC. Mr. Neeraj Tiwari, the learned counsel for the respondent, has vehemently contended that the appellants had filed an application for summoning the process server as a 3 witness. However, subsequently they did not press the said application. For this reason, the process server was never examined as a witness. Moreover, according to him, the evidence of both the witnesses is trustworthy. Therefore, the learned Judge has validly rejected the application under Order 9 Rule 13 CPC. Hence, he has supported the impugned order. Heard the learned counsel for the parties and perused the impugned order as well as the case law submitted at the Bar. In order to establish whether the summons were properly sent or not, naturally the star witness would be the process server himself. Even if it is admitted that the appellants did not press their application for summoning the process server as a witness, it does not mean that the court should sit as a mute witness. In catena of cases, the Hon'ble Supreme Court has observed that judges do not sit like silent spectator watching the trial. In fact, they are legally bound to play a pro-active role. Since it was the duty of the learned Judge to decipher and to adjudge whether the summons were properly served or not, he was, in fact, duty bound to summon the process server himself. Of course, he could have invoked his power and could have examined the process server as a court witness. Even if there is a statement of process server available on record, but the credibility of the witness can be decided only once a witness is subjected to cross-examination. Therefore, the learned Judge 4 was duty bound to call the process server as a court witness and to permit the appellants to subject him to a proper cross- examination. Unfortunately, the learned Judge has failed to exercise a jurisdiction which was clearly vested in him. With this failure, he has caused injustice to the appellants. A bare perusal of the testimonies of Amar Singh and Ghanshyam clearly reveal that Amar Singh, in his cross- examination, has also admitted that he was not present when the process server was trying to deliver the summons to the appellant No.1. Therefore, his testimony, as admitted in cross- examination-in-chief, looses all its significance. Moreover, Ghanshyam claims in the cross-examination that Rajendra Singh was present. Since this statement is contradictory to the report of the process server, even this witness cannot be relied upon. In this view of the matter, the testimonies of both these witnesses do not come to rescue of the respondent. In the case of Shyam Lal & Ors. (Supra), this Court has clearly held as under : Order 5 Rule 10 prescribes the mode of service which is to be made by delivering or tendering a copy thereof signed by the Judge or such officer to the defendant. Rule 12 prescribes that as far as possible service shall be made on defendant in person unless he is an agent empowered to accept service. Rule 15 provides that in case the defendant is absent from his residence at the time when the service of 5 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 had no agent empowered to accept the service of the summons on his behalf, in such situation the service may be made on any adult member of the family who is residing with him. Rule 17 of Order V prescribes that where the defendant or his agent or such other person refuses to sign the acknowledgment or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, or 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. Rule 19 provides that where summons are returned under rule 17, and if returned under the rule had not been verified by the affidavit of the serving officer and may, if it has been so verified, examine, the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit. Rule 19-A provides simultaneous issue of summons for service by post in addition to personal service and Rule 20 provides for substituted service. Since a summon is not merely a formality to be observed, but is a serious business, therefore, the court should 6 be vigilant enough to see whether the summons were duly served according to law or not. In the present case, the summons were not duly served. Therefore, this Court has no other option but to set aside the order dated 17.04.2010. Hence, the ex-parte decree and judgment dated 06.08.2003 is, hereby, set aside and the case is sent back to the trial court to proceed further. Since the case has been hanging fire for many years, the trial court is directed to expedite the case as soon as possible. With these observations, the appeal is, hereby, allowed. (R.S.CHAUHAN)J. Manoj Solanki-