DEEPAK MAHESHWARI,J. - (1.) This writ petition has been preferred challenging the judgment and decree dated 02.02.2015 (Annex.4), orders dated 10.02.2016 (Annex.9) and 04.06.2016 (Annex.11) passed by learned Civil Judge (JD), Sumerpur, District Pali and learned Addl. District Judge, Sumerpur, District Pali respectively. It has also been prayed that the application filed by the petitioner under Order 9, Rule 13 CPC before the trial Court may kindly be allowed and the suit may be ordered to be re-tried after giving opportunity of hearing to the petitioner.
(2.) It has been averred by learned counsel for the petitioner during arguments that a summary suit under Order 37, Rule 1 and 2 CPC was filed by the respondent plaintiff - Dhanaram against the petitioner and one other - Narayanlal (respondent No.2 herein) for recovery of Rs.1,06,000/-. The second respondent herein put his appearance in that suit. However, service was not effected upon the petitioner, still learned trial Court proceeded to issue summons for judgment on 2.1.2015. After showing that the petitioner has refused the service of the same, ex-parte proceedings were initiated against him. Learned trial Court proceeded to pass the impugned judgment and decree dated 2.2.2015 whereby the suit filed by the plaintiff respondent was decreed against the petitioner as well as respondent No.2 jointly and severally. As soon as the petitioner came to know about the decree, he filed an application under Order 9, Rule 13 CPC for setting aside the same. Vide the order impugned dated 10.2.2016, learned trial Court rejected the application. Petitioner preferred an appeal against the said order, which also came to be rejected vide order dated 4.6.2016 by learned Addl. District Judge, Sumerpur.
(3.) Learned counsel has argued that as per the requirement of Order 37, Rule 2 CPC, the summons of the suit were not served upon the petitioner. He has referred to the order-sheet dated 08.12.2014 of learned trial Court wherein mention has been made regarding service of summons upon defendant No.2 only. He has further argued that summons for judgment were ordered to be issued on 08.12.2014 though the petitioner had not put his appearance as per Order 37, Rule 3 CPC. Vide order dated 2.1.2015, trial Court recorded that the summons issued for defendant No.1 (petitioner herein) have been refused by him. On the basis of the said refusal, his service was presumed to have been effected and ex-parte proceedings were initiated against him.;