ORDER
J.S. Sangma, J.
1. This civil revision under Section 115, C.P.C. was dismissed on 29-8-88 for default of the petitioner. It was restored on 28-9-88 at the instance of the petitioner. After that the case was called for hearing for the second time on 22-12-88; but on that date also, the petitioner’s counsel was absent. As it was not possible for the Court to go on dismissing for default and again restoring when the counsel makes a request; I perused the petition of revision and, by my judgment dated 9-2-89, dismissed it ex parte on merits.
2. Mr. S.K. Sen, the late senior counsel for the petitioner assiduously pressed for vacating the ex parte judgment of dismissal and for disposing of the revision after hearing him. On consideration that the party should not suffer because of the fault of the counsel, I issued notice to the opposite party and then heard the counsel for both sides.
3. The facts of the case were as follows. The opposite party was the plaintiff in Title Suit No. 136/78 of the Court of Sadar Munsif at Guwahati. The suit was for eviction of the petitioners and some other persons, who were the defendants, from the suit land. The process-server submitted report to the trial Court that the defendants refused to accept the summons and therefore, he had served the summons by hanging it on their dwelling house in presence of two witnesses. The trial Court accepted this report. But the defendants made no appearance before the Court. Relying on the process-server’s report, the learned Munsiff recorded the evidence of the plaintiff in absence of the defendants and decreed the suit ex parte for eviction of all the defendants. When the plaintiff started an execution case for eviction, three defendants who are the petitioners herein filed an application under Order 9, Rule 13, C.P.C. for setting aside the ex parte decree stating that no summons were served on them in the suit. The other defendants had been evicted. The petitioners’ application was registered as Misc. Case No. 114(J) of 1984. In this Misc. Case, the plaintiff examined the process-server to prove that the summons were offered by him to the defendants who refused to receive and therefore, the summons to defendants were served by hanging it on their dwelling houses in presence of two witnesses whom he had named in the report. However, relying on the uncorroborated evidence of the process-server, the learned Munsiff by his order dated 15-3-86 refused to set aside the ex parte decree. On appeal by the petitioner (Misc. Appeal No. 7/86), the learned Assistant District Judge No. 1, Guwahati confirmed the rejection by his order dated 18-11-87 (the impugned order). The petitioners are still in possession of a part of the suit land which is under their occupation. Their claim is that they had possessed their part for 22 years without being questioned by anybody.
4. The point for determination in this revision is whether the trial Court had jurisdiction to accept the process-server’s report without making any enquiry before proceeding with the suit ex parte. Mr. R.P. Sarma, learned Counsel for the petitioner has contended that the provisions of Order 5, Rule 19, C.P.C. are mandatory and, therefore, where a process-server gave a report that he had served the summons by hanging it on the homes of the defendants, the trial Judgemust make enquiry by examining the process-server and other witnesses and record an order that summons were duly served on the defendants and only thereafter he can proceed to dispose of the suit ex parte. To support this contention, he placed the Full Bench decision of the Madras High Court in Parasurama v. Appadurai, AIR 1970 Mad 271. In that case, a Full Bench dealing with Order 5, Rule 19, C.P.C. held:
“Where the Legislature has used the words ‘shall’ and ‘may’ in the same provision, that itself is an indication, that the word ‘shall’ has been used in a mandatory sense.”
The relevant provision for determination of this revision are Order 5, Rules 17 and 19 and Order 9, Rule 6(1) and 1(a), C.P.C. They are as follows:
Order 5, Rules 17 and 19
“17. Procedure when defendant refused to accept service, or cannot be found. — Where the defendant or his agent or such other person as aforesaid refused to sign the acknowledgment, or where the serving officer, after using all due and reasonable deligence, 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.”
“19. Examination of serving officer.–Where a summons is returned under Rule 17, the Court shall, if the return under that rule has 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 enquiry 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.”
Order 9, Rule 6(1) and (1)(a)
“6. Procedure when only plaintiff appears. — (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then –
(a) When summons duly served.– If it is proved, that the summons was duly served, the Court may make an order that the suit be heard ex parte.” ,
5. These provisions have been made to safeguard the interest of the defendants who do not make appearance before the Court in spite of process-server’s report that summons had been served on the defendants either personally or otherwise; and to prevent the plaintiff from getting ex parte decree in collusion with the process-server. The trial Court, therefore, must ensure that the defendants have wilfully remained absent in spite of knowledge of the suit. It has to do this by examining the process-server and other witnesses as it thought fit before deciding to hear the suit ex parte.
6. In the instant case, the defendants never made appearance before the trial Court. The learned Munsiff, however, readily accepted the report of process-server and without making an enquiry to ensure the correctness of the process-server’s report that he had served the summons by hanging it on the dwelling houses of the defendants — he at once heard and decreed the suit ex parte. Thus, he has failed to comply with the requirements of Order 5, Rule 19 and Order 9, Rule 6(1) and (1)(a), C.P.C. Mr. B.C. Sarma, learned Counsel for the opposite party, however, contended that in a revision under Section 115, C.P.C. the petitioners cannot question the order passed by the trial Court unless it affects the jurisdiction of the Court. I do not think that the contention is correct. The failure to comply the said provisions of the C.P.C. affects the jurisdiction of the Court to proceed on with the suit. The trial Court thus acted illegally in hearing and passing the decree ex parte. The enquiry made after passing of ex parte decree does not cure the illegality.
7. I, therefore, vacate my judgment dated 9-2-89 and allow the revision by setting aside the ex parte decreed dated 30-3-79 passed by the learned Sadar Munsiff in Title Suit No. 136/78 and remand the suit to his Court, As the suit is now 13 years’ old, I direct the learned Munsiff to dispose it of expeditiously and if possible within a period of six months from the date of appearance by the parties. The parties are residents of Gauhati, they shall appear before the Court of Munsif at Gauhati on 10-4-92. Record shall be sent down before this date.
8. The revision was disposed of by me on 9-2-89. The delay up to this date has taken place because of the fault of the petitioner. I, therefore, direct that the petitioners shall pay Rs. 500/- for cost of the revision to the opposite party within a period of 15 days from 10-4-92 failing which the suit shall not proceed and the opposite party will be entitled to execute the ex parte decree.