SUHRID KUMAR ROY CHOUDHURY Vs. MUKUL ROY CHOUDHURY

JUDGEMENT

(1.) By this appeal, the appellant-defendant No. 2 has challenged the legality of the order dated 6-7-1982 by which the Court below has dismissed the application filed by the petitioner under Order IX, Rule 13 of the Code of Civil Procedure (the Code) which was registered as Miscellaneous Case No. 2 of 1982.

(2.) The Suit No. 42 of 1981 was filed for partition of the suit property of respondent plaintiff. The Court below found from the record that summons had been served on the defendants of that suit including the appellant-defendant No. 2, It, therefore, heard the suit ex parte and decreed the same. According to the appellant, no summon of the suit was ever served on him and that when he learnt about the ex parte decree, he filed an application. Under Order IX, Rule 13 of the Code hut the Court below has dismissed the same rejecting the prayer for the appellant made therein. The grievance of the appellant is that the Court below had no jurisdiction to reject the application filed on behalf of the appellant without giving him opportunity to substantiate his case, that is, non-service of summons of the suit on him.

(3.) From the perusal of the order impugned, it appears that the Court below had perused the records of the suit and was satisfied from the report of the Process Server and other materials that the summons had been served on the appellant. In my opinion, when the application was filed by the appellant under Order IX, Rule 12 of the Code the Court below was bound to admit the same and to give opportunity to the appellant to led evidence to satisfy that the summons of the suit had not been served on him. The Court below had no jurisdiction to dismiss the application on the basis of the report of the process server and other materials which were available in the records of the suit without hearing the parties.