Rajasthan High Court - Jodhpur

Mohan Lal vs Bheru Lal Bafnas Lrs on 17 August, 2023

Bench: Nupur Bhati

        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
                   S.B. Civil Writ Petition No. 2300/2014

    Mohan Lal Son of Shri Sujanmal Pangadiya, aged about 67
    years, by caste Pangadiya, Resident of Pansari Bazar, Purani
    Dhanmandi, Ward No.5, Bhilwara (Raj).
                                                                        ----Petitioner
                                        Versus
    Bheru Lal Bafna official receiver of Bhopal Singh Lrs (deceased)
    through his LRs:-
    1.Sunil Son of Late Shri Bhupal Singh Dhariwal,
    2. Smt. Snehlata Wife of Late Shri Bhupal Singh Dhariwal.
    Respondent No. 1 and 2 are residents of 39142 Sneha Vila,
    Arihant Nagar, Bhilwara (Raj.).
    3. Smt. Sadhna Daughter of Late Shri Bhupal Singh, Wife of Shri
    Vinod Mehta.
    4. Smt. Leena Daughter of Late Shri Bhupal Singh, Wife of Shri
    Sanjay Bhandari.
    Respondent No. 3 and 4 resident of Mansarovar, Jaipur (Raj.).


                                                                     ----Respondents


   For Petitioner(s)           :    Mr Shreedhar Purohit
                                    Ms.Shivani Mutha & Mr. RS Mali
   For Respondent(s)           :    Mr. Manish Shishodia, Sr Adv.,
                                    assisted by Ms. Pratyushi Mehta



                HON'BLE DR. JUSTICE NUPUR BHATI

                                      ORDER

Reportable

17/08/2023

1. The instant writ petition has been preferred by the petitioner

under Article 226 and 227 of the Constitution of India with the

following prayers:-

(2 of 19) [CW-2300/2014]

i) by an appropriate writ order or direction the impugned order (Annexure-7) dated 11.3.2014 and the consequential proceedings may kindly be quashed and set aside and the petitioner may kindly be permitted to contest the Civil Suit No. 13/2001 by submitting his written argument and adducing evidence according to law.

ii) Any other appropriate writ, direction, order or relief which is found favourable to the petitioner in the facts and circumstances of this case may kindly be granted.

2. Brief facts of the case are that the petitioner is a tenant of

the shop situated in Pansari Bazar, old Dhanmandi, Bhilwara and

prior to him his father Sujanmalji had occupied the shop in

question in the capacity of a tenant. In respect of this shop late

Shri Bhupal Singh filed a partition suit in the District Court

Bhilwara on 08.12.1983 and along with the suit, an application

under Order 40 Rule 1 Civil Procedure Code 1908 (hereinafter

referred to as CPC in short) was submitted for appointing an

official receiver and accordingly one advocate Shri Satya Narayan

Derashree was appointed as an Official receiver in the suit on

04.03.1986. However, Shri Satyanarayan Derashree was selected

in Rajasthan Higher Judicial Services and therefore, in his place

advocate Shri Bheru Lal Bafna was appointed as the official

receiver. Shri Bheru Lal Bafna in the capacity of an official receiver

of the property of Bhupal Singh filed a suit for eviction and for

recovery of arrears of rent against the petitioner regarding the

shop in question. This suit was decreed ex-parte by the Court of

learned Additional Civil Judge (Junior Division) No.2, Bhilwara on

20.04.2004(Annexure1).

(3 of 19) [CW-2300/2014]

3. The petitioner got the information about the ex-parte decree

when he received the notice of the Execution proceedings for the

first time on 08.03.2011. After receiving the notices of the

execution proceedings on 08.03.2011, the petitioner obtained the

certified copies of the judgment and the order sheets. Thereafter

he submitted an application dated 06.04.2011 (Annexure-2) for

setting aside the ex-parte decree by invoking the provisions of

Order 9 Rule 13 CPC read with Section 151 CPC 1908 and also

submitted an application under Section 5 of The Limitation Act

1963 for condonation of delay. The application of the petitioner

dated 06.04.2011 for setting aside the ex-parte decree dated

20.04.2004 in Civil Suit No. 13/2011 was contested by the

respondents and the learned Additional Civil Judge (Junior

Division) No.2, Bhilwara after hearing the arguments of both the

parties passed the order dated 19.07.2013 by which the

application of the petitioner filed under Order 9 Rule 13 CPC for

setting aside ex-parte decree dated 20.04.2004 was dismissed.

4. The petitioner challenged order dated 19.07.2013 by filing a

writ petition S.B. Civil Writ Petition No.11737/2013 and while

hearing this writ petition at the admission stage, this Hon'ble

Court ordered to issue notices to the respondents and by ad-

interim stay order the execution proceedings were stayed.

However, the writ petition was submitted under a bona fide

mistake because the order dated 19.7.2013 was an appealable

order and as such the above mentioned writ petition

No.11737/2013 was withdrawn with the liberty to file the appeal

before the District Court.

(4 of 19) [CW-2300/2014]

5. Thus the order dated 19.7.2013 was challenged before the

District Court which was transferred to the Court of Additional

District Judge No.2, Bhilwara. The Additional District Judge No.2

Bhilwara after hearing the appeal dismissed the same vide

impugned order dated 11.3.2014. Hence this writ petition.

6. Learned counsel for the petitioner submits that that no

summon was served personally on the petitioner nor the copy of

the plaint was sent to the petitioner by post. Therefore, proper

service of the summons along with the plaint was not done. He

further submits that the learned trial court proceeded in this

matter with haste and completed the proceedings regarding the

service of summons on the first date of hearing itself which was

fixed on 14.05.1999, however, the summons were issued on

25.01.1999 for the first time after registering of the Civil Suit. The

certified copy of the order sheet (Annexure-3) clearly reveals that

on the first date of hearing the learned trial court has observed

that since no body appeared despite service to the petitioner

Mohan Lal, the proceedings were ordered to be conducted ex-

parte. He also submits that the learned trial court was under a

legal obligation to pass a specific and reasoned order showing the

completion of service against the petitioner, but the same had not

been done, which is evident from the order sheet dated

14.05.1999. He further submits that the order-sheet also does not

indicate that the learned trial Court asked the peon of the Court to

make a call with respect to petitioner Mohan Lal to remain present

in the Court as no such call was made.

(5 of 19) [CW-2300/2014]

7. Learned counsel for the petitioner further submits that there

is a no finding that the service has been considered to be

sufficient as the summons were not personally served upon the

petitioner-Mohan Lal. Therefore, this procedure adopted by the

trial Court has resulted in grave injustice to the petitioner and the

procedure being in violation of Order 5 Rule CPC is also illegal, He

also submits that the summon alleged to be sent by the trial Court

was not personally served upon the petitioner nor there is any

material to show that the copy of the plaint was served upon the

petitioner thus in this way, the order of the learned trial Court to

proceed with the suit ex parte on 14.5.1999 was an unjust action

and hence the subsequent ex parte proceedings and ex parte

decree dated 20.4.2004 is illegal and deserves to be quashed and

set aside.

8. Learned counsel for the petitioner also submits that the

report of the process server (Annexure- 4) clearly reveals that he

enquired about the shop of the petitioner through witness of the

area, but, process server report (Annexure-4) does not contain

name of any witness nor does it contain signature of any witness,

Thus, this clearly raises a serious doubt about the truthfulness of

the report of process server, because if there had been any

witness, he would have definitely obtained the signature of

witness and would have put the name of the witness, Therefore,

the absence of signature and names of the witness renders the

report process server (Annexure-4) doubtful and illegal. He further

submits that the report also does not show the service of plaint

upon the petitioner or affixing the plaint on the shop of the

(6 of 19) [CW-2300/2014]

petitioner as in these circumstances the learned trial court ought

to have examined the process server for satisfying itself as to

whether the service of summons could be considered sufficient or

not, but the learned trial court did not proceed in this manner

which has resulted in passing an illegal order of proceeding the

suit ex-parte and has caused severe miscarriage of justice to the

petitioner and has also violated the principles of natural justice.

9. Learned counsel for the petitioner further submits that the

process by which the learned trial court had held the service of the

summons as complete is improper, being violative of Order 5 Rule

17 of CPC and the petitioner while submitting the application for

setting aside the ex parte decree dated 20.4.2004 also filed an

affidavit and as such the statement on oath of the petitioner was

not nullified because the process server was not examined by the

trial Court on oath, and in any case even if there is an oath

against oath, the trial Court ought to have set aside such an ex

parte decree in the interest of justice.

10. Learned counsel for the petitioner also submits that the

petitioner while contesting his application for setting aside the ex-

parte decree also placed reliance on a judgment delivered by this

Hon'ble Court but the same was not considered by the learned

trial court as well as by the Appellate Court. Hence the order

dated 19.07.2013, ex parte decree dated 20.4.2004 and the

impugned order dated 11.3.2014 passed by the appellate Court

deserve to be quashed. He further submits that the observation of

the learned appellate Court that since the petitioner did not make

(7 of 19) [CW-2300/2014]

any complaint of the process server to the learned District Judge,

the approach of the process server as considered proper is illegal

and at the same time the process server ought to have been

examined who was not examined.

11. Learned counsel for the petitioner also submits that in order

to do complete justice between the parties, the principles of

natural justice demand that the tenant's rights to continue in the

rented premises should be determined by hearing both the

parties. Therefore, the learned trial court as well as the learned

appellate Court, while keeping the principles of natural justice in

mind, ought to have allowed the application of the petitioner

moved under Order 9 Rule 13 CPC in the interest of justice, Since,

such a course has not been adopted by the learned courts, the

impugned order dated 11.3.2014 (Annexure-7), order dated

19.7.2013 (Annexure-5) and ex parte decree dated 20.4.2004

(Annexure-1) which have caused severe injustice to the petitioner

deserve to be quashed and set aside in the interest of justice.

The learned counsel for the petitioner places reliance on the

judgment passed by the Hon'ble Apex Court in the case of

Shushil Kumar Sabharwal versus Gurpreet Singh And

Others reported in (2002) 5 SCC 377. The relevant portion of

the judgment is reproduced here as under:

"Order 9 Rule 6 of the C.P.C. is pertinent. It contemplates three situations when on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the Court depending on the given situation. The three situations are: (i) when summons duly served, (ii)

(8 of 19) [CW-2300/2014]

when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the Court may make an order that the suit be heard ex-parte. The provision casts an obligations on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being 'proved' that the summons was duly served when and when alone, the Court is conferred with a discretion to make an order that the suit be heard ex-parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the Court to satisfy itself on the service of summons. Any default or casual approach on the part of the Court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex- parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of his.

We find several infirmities and lapses on the part of the process server. Firstly, on the alleged refusal by the defendant either he did not affix a copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall should have been witnessed by persons who identified the defendant and his shop and witnessed such procedure. The endorsement shows that there were no witnesses available on the spot. The correctness of such endorsement is difficult to believe even prima facie. The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. One

(9 of 19) [CW-2300/2014]

can understand refusal by unwilling persons requested by the process wherever to witness the proceedings and be a party to the procedure of the service of summons but to say that there were no witnesses available on the spot is a statement which can be accepted only with a pinch of salt."

Learned counsel for the petitioner further places reliance on the

judgment passed by the Hon'ble Apex Court in the case of Nahar

Enterprises Versus Hyderabad Allwyn Ltd. and Ors. reported

in (2007) 9 SCC 466. The relevant portion of the judgment is

reproduced here as under:

"(8) The Learned Counsel appears to be correct. When a summons is sent calling upon a defendant to appear in the Court and file his written statement, it is obligatory on the part of the court to send a copy of the plaint and other documents appended thereto, in terms of Order 5, Rule 2 CPC.

Order 5 Rule 2 of the CPC reads as under:

               "Copy      of   plaint   annexed       to      summons   -   Every
               summons shall be accompanied by a copy of the
               plaint."

9. The learned Judge did not address itself the question as to how a defendant, in absence of a copy of the plaint and other documents, would be able to file his written statement. The Court, furthermore, in our opinion, committed a manifest error in so far as it failed to take into consideration that the summons having been served upon the appellant after the date fixed for his appearance, it was obligatory on its part to fix another date for his appearance and filing written statement and direct the plaintiff to take steps for service of fresh summons. This legal position is explicit in view of the provisions of order 9 Rule 6 (1) (C) of CPC which reads:

(10 of 19) [CW-2300/2014]

"When summons served but not in due time - if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant."

10. The court, therefore, committed an illegality in dismissing the application for setting aside the ex- parte decree. It was a fit case where the Court should have exercised its jurisdiction under order 9 Rule 13 of CPC."

12. Per Contra Learned Senior Counsel for the respondents

submits that the shop in question situated at Pansari Bazar, Near

Bada Temple, Bhilwara was let out to Shri Sujan Mal Pangadiya for

a monthly rent of Rs. 12/- about 50 years back. Moreover the

property in question belonged to grandfather of the respondents-

plaintiff and in wake of the dispute between the legal heirs, a

receiver was appointed for the property of late Shri Ajeet singh

Dhariwal and the said receiver filed a suit for eviction on

25.01.1999 interalia contending that the tenant has defaulted in

making payment of rent in relation to the shop in question and

has made material alteration; also during the course of

proceedings, the earlier receiver was changed and shri Bheru Lal

Bafna was appointed as receiver on 26.08.1998, who had filed the

present suit

13. Learned Senior Counsel for the respondents also submits

that since at the time of filing the suit, the said tenant Sujan Mal

Pangadiya had expired and the suit was filed against petitioner

defendant Shri Mohan Lal Pangadiya S/o the original tenant i.e.

(11 of 19) [CW-2300/2014]

Sujan Mal Pangadiya who was having the possession of the shop.

He further submits that after issuance of the notice by the learned

Court for 14.05.1999 the Process Server namely Nemichand Regar

went to the shop in question and offered the notice to Mohan Lal

Pangadiya available on the shop, who after perusal of the same

refused to take the notice and in such a situation, the process

server affixed the notice on the wall of the shop and despite the

request of the process server, persons present on the site refused

to attest the same, thus, as per the aforementioned facts, the said

process server submitted his report before the learned trial Court

and based on the above report of the process server the learned

trial Court decided to proceed ex-parte.

14. Learned Senior Counsel for the respondents also submits

that after recording the evidence of the plaintiff-respondents, the

said suit ultimately came to be decreed vide Order dated

20.04.2004 by the learned Additional Civil Judge (Junior Division

2), Bhilwara and despite suit having been decreed on 20.04.2004,

the receiver did not initiate proceedings for execution, However,

said Bheru Lal Bafna also resigned from the duties of receiver on

23.06.2005. He further submits that after lapse of about 5-6

years, the family of late Shri Ajeet Singh Dhariwal authorized the

respondent No1, Sunil Dhariwal (Grandson of Shri Ajeet Singh

Dhariwal) to take care of all the properties and litigation, Thus,

Shri Sunil Dhariwal filed an execution application on 07.07.2010 to

execute the decree dated 20.04.2004.

(12 of 19) [CW-2300/2014]

15. Learned Senior Counsel for the respondents also submits

that after filing of the execution application in the Year 2010, the

sale-ameen went to the shop in question for executing the warrant

of possession on 17.09.2013 and when the sale-ameen visited the

shop, he found that the shop in question was lying closed and

vacant and some articles such as biscuits, soaps belonging to

nearby shopkeeper Manohar Lal Sindhi were lying in the shop in

question, thus, the sale-ameen prepared a detailed report on

17.09.2013. He further submits that a perusal of the said report of

the sale-ameen shows that at the time of executing warrant of

possession, the subject shop was lying closed and idle without

being used by the Petitioner- Tenant and the articles belonging to

Manohar Lal Sindhi were lying in the shop thus it is, therefore

Clear that the Petitioner - Tenant has abandoned the shop and he

is not using the same for his business.

16. Learned Senior Counsel for the respondents also submits that

there were number of properties belonging to late Shri Ajeet singh

Dhariwal, which were let out to various tenants. After 2010, Sunil

Dhariwal one of the legal heirs decided to take up the legal

proceedings including filing execution applications in respect of all

the properties after taking consent from other legal heirs and as

such, a number of execution applications were filed by the

undersigned in various courts. He further submits that after death

of original tenant Shri Sujan Mal Pangadiya, his son petitioner-

defendant Mohan Lal Pangadiya has not carried his father's

business in the disputed shop and the same is lying abandoned

since a long time and that petitioner-defendant Mohan Lal

(13 of 19) [CW-2300/2014]

Pangadiya is carrying on business of grocery store in another shop

situated in the same area and he is not in requirement/need of the

present shop in question.

17. Learned Senior Counsel for the respondents also submits

that despite of the service of the notice and the petitioner being

fully aware of the legal proceedings taken up by the respondents-

plaintiff, the tenant has deliberately not appeared before the

learned trial Court and has kept the possession of the shop, which

is of no use to him. He further submits that the petitioner-tenant

has not even deposited the monthly rent of Rs. 12/- for years

together till date and that the tenant has abandoned the shop and

has no intention to carry on the business in the shop in question,

which was let out to his father about more than 50 years ago at a

meagre monthly rent of Rs. 12/-.

18. Learned Senior Counsel for the respondents also submits

that the petitioner has taken up the proceedings including the

application for setting-aside the ex-parte decree simply with a

view to harass the respondents-landlord as the petitioner has no

intention to carry on business in the disputed shop and also that

the present Writ petition is not bonafide and has been filed simply

to deprive the respondents of taking the possession of the shop

pursuant to the decree passed by learned trial Court.

19. Learned Senior Counsel for the respondents further submits

that the basic contention of the Petitioner's case that as per

provisions contained in Order 5 Rule 17 of CPC, it was required by

the learned trial Court to send the summons vide registered AD

(14 of 19) [CW-2300/2014]

Post and other alleged irregularities in relation to the service of

summon by the process server are not only factually incorrect but

also unsustainable in the eye of law, He also submits that a bare

reading of Order 5 Rule 17 CPC shows that it is not mandatory for

the process server to mention name and address of the person in

whose presence the copy was affixed as evident from the

provisions contained in Order 5 Rule 17 CPC that are

circumscribed by the use of words "if any", which renders the

provisions directory and hence mentioning name and address of

the persons present at the time of affixation is insignificant. He

further submits that in view of the detailed halfia report given by

the Process Server, there remains no room for doubting the

service upon the defendant-petitioner.

20. Heard Learned counsel for the parties; perused the material

available on record and the judgments cited at the Bar.

21. This Court finds that the appellate court vide its order dated

11.03.2014 observed that the process server on 9.02.1999

effected the service of summon on the address which was

provided by the petitioner itself and as mentioned in the Halfiya

Report (Annexure-3) that the petitioner Mohan lal Panagdiya was

present at the shop in question and refused to accept the summon

after having read the same which is also proved by the process

server's report which cannot be faulted; Thus the report of the

process server cannot be faulted and the petitioner has also not

given any evidence to prove the same that the report of process

server is improper; the petitioner also stated that the process

(15 of 19) [CW-2300/2014]

server should have been examined but the petitioner did not take

any such action or availed any remedy for the same thus the

petitioner cannot take such a stand at this stage. Moreover, the

report of the process server has been attested by the District and

Session Judge which fulfils the mandates of the Order 5 Rule 19

CPC and no further cogent reasons have been provided by the

petitioner for nullifying the Process Server's Report. The Halfiya

Report dated 11.02.1999 is reproduced here as under.

हल्फ़िया रिपोर्ट

मै प्रोससे सरवर नेमी चन्द्र रे गर न्यायालय भीलवाडा, का होकर यह हल्फ़िया रिपोट पेश है कि तामिल वास्ते दि. 9.2.99 को पुरानी धानमण्डी पहूँ चकर मौतबिरानो से मोहनलाल पुत्र सुजानमल जी पानगडिया की मालू मात करतो बाद उनकी किराणा दु कान पर पहुँ चा जहां पर स्वयं मोहनलाल पानगडिया मिला। जिसने सम्मन पढकर लेने से इं कार किया। तब खुल्ली हुई दु कान पर सम्मन की एक प्रति चिपका कर चस्पा किया गया। मौके पर मौतबिरान ने तस्दीक करने से इं कार किया।

अतः श्रीमान की सेवा में वाद तामील पेश है ।

22. This Court further observes that Order 5 Rule 17 CPC has

been complied with while serving the summons and the contention

of the petitioner that names and signature of independent

witnesses have not been taken cannot sustain as the process

server asked the witnesses present near the shop in question to

attest their name and signature which was denied by the

witnesses when process server had gone to the shop in question

for effecting the service of summons. This Court also observes

that the appellate court has observed that despite the presence of

the petitioner at the shop in question and after having read the

(16 of 19) [CW-2300/2014]

summons petitioner refused to accept the same, and if the

aforementioned would have been false then the petitioner should

have taken appropriate action regarding the same before District

Judge Bhilwara but no such complaint has been filed and no action

has been taken by the petitioner in regard to the same. Thus on

09.92.1999 petitioner got the information regarding the pending

matter and also as per provisions of Order 5 Rule 17 CPC, the

summon was also affixed which cannot be denied by the

petitioner-tenant. This court further observes that the judgments

on which reliance has been placed by the petitioner are having

different facts than the instant case, because in those judgments

the summons were not served where as in the instant case the

summons were refused to be accepted by the petitioner and the

process server duly affixed them on the shop in question which is

evident from the report of the process server (Annexure- 4).

Therefore all the conditions provided under order 5 Rule 17 CPC

have been complied with.

Order 5 Rule 9(5) and Rule 17 of the Civil Procedure Code 1908

are reproduced here as under:

ORDER V - Issue and service of summons

Issue of Summons

[9. Delivery of summons by Court.--

(1) xxx

(2) xxx

(3) xxx

(4) xxx

(5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court

(17 of 19) [CW-2300/2014]

or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, pre- paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.

17. 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, 2 [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.

23. This court further observes that from the above facts it is

clear that the petitioner deliberately refused to accept the

(18 of 19) [CW-2300/2014]

summon and it was well within his knowledge that the suit

proceedings are going on but chose not to contest the suit, further

the summons served were received back with the noting of the

Process Server that the petitioner who was present at the shop in

question had refused to accept the summons after reading it

which were duly affixed at the shop in question. A bare look at the

Order 5 Rule 9 CPC reflects that where the defendant refuses to

accept the summons, the Court issuing the summons shall declare

that the summons had been duly served upon the defendant.