(1) Plaintiff/respondent no. 1 instituted a suit for declaration and perpetual injunction against the defendants/petitioners and respondent no. 2 in the court of second civil judge class - ii, khurai. Summons were issued to defendants/petitioners in ordinary manner for giving appearance on 20 - 6 - 2006. The process server put a remark that defendants/petitioners refused to accept the summons. On this basis, ex parte proceedings were drawn against the defendants/petitioners on 20 - 6 - 2006. Thereafter, the learned trial judge on 23 - 6 - 2006 allowed the application for temporary injunction under or. 39, r 1,2 of the code of civil procedure,1908 in ex parte manner, restraining thereby the petitioners from causing interference in the suit property till decision of the suit.
(2) Defendants/petitioners on coming to know about ex parte temporary injunction order on 10 - 7 - 2006 submitted an application under order 9, rule 17 of the code of civil procedure duly supported by affidavits of both of them. It was expressly and specifically contended in the application as well as affidavits that summons were not tendered to them and they did not refuse to accept the summons. Application was duly replied by the plaintiffs and the allegations contained therein were refuted.
(3) Learned trial judge vide his order dated 2 - 11 - 2006 dismissed the application under order 9, rule 7 of the code of civil procedure on the ground that summons were tendered to the defendants/petitioners by the process server and the same were refused on being tendered as revealed in the remark of the process server.
(4) Shri r. K. Samaiya, learned counsel submitted that the impugned order having been passed without an enquiry, is not sustainable in law. He contended that defendants/petitioners expressly and specifically stated that summons were not tendered and defendants/petitioners did not refuse to accept them. This having been countered by the plaintiff/respondent no. 1, it has been contended that there is no legal justification in rejecting the application without making an enquiry; as held by this court in the case of shyambihari pandey vs. Vishnuprasad pandey, 1977 mpwn 211.
(5) Shri sankalp kochar, learned counsel for respondent no. 1 vehemently opposed the petition on the ground that the findings recorded by the learned trial judge are based on the report of process server and the reasons assigned by the learned trial judge cannot be said to be legally faulty and cannot be further legally interfered with.
(6) After hearing learned counsel for the parties, i am of the considered opinion that the petition deserves to be allowed though on altogether different counts.
(7) Summons are issued in accordance with the provisions contained in order 5 of the code of civil procedure. Order 5, rule 17 of civil procedure code reads as follows : -
"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 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."
There is a local amendment in the state of madhya pradesh inserted by way of following proviso to order 5, rule 17 of the code of civil procedure : -
"provided that where a special service has been issued and the defendant refused to sign the acknowledgment it shall not be necessary to affix a copy as directed hereinafter."
(8) In view of the aforesaid, it is clear that refusal on the part of defendants/ petitioners to accept the summons and/or to sign the acknowledgment would not amount ipso facto to due service unless a copy of summons is affixed on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business.
(9) In the case in hand, the summons were issued in ordinary manner and the special service was not issued at all. In the absence of special service, it was obligatory on the part of the process server to make the affixation as provided under order 5, rule 17 of the code of civil procedure. This having not been observed, the defendants/petitioners were not duly served with the summons and would not have been so treated. In the absence of a valid service of summons on the defendants, the learned trial judge had no power/jurisdiction to draw ex parte proceedings against them and to pass an ex parte order of temporary injunction.
(10) In the result, the petition succeeds and is, hereby, allowed. The impugned order contained in annx. P/6 is, hereby, set aside. Ex parte proceedings drawn on 20 - 6 - 2006 against the defendants/petitioners are, hereby, set aside being without jurisdiction. Consequently, the order of temporary injunction passed by the learned trial judge on 23 - 6 - 2006 is also hereby quashed. Learned trial judge is directed to grant opportunity to the defendants/petitioners to submit reply in response to the application for temporary injunction and to decide the application afresh, in accordance with law. No order as to costs. Petition allowed.