1. - By this writ petition, a challenge has been made to the order dated 22.7.2010 on an application moved under Order 9, Rule 9 read with Section 151 of the Civil Procedure Code (for short 'CPC').

2. It is alleged that without service of notice, ex-parte proceedings have been initiated by the Rent Tribunal. The fact regarding ex-parte proceedings could be noticed in a quarrel between petitioner and her son, not having good relation and are living in separate portions. No reply to application was submitted by respondents herein. The only argument made therein was that no document has been placed to show that petitioner and her son are living separately. As per provisions of Order 5, Rule 15 of the CPC, notice on defendant's son is considered to be proper service. However, the court below thereupon allowed petitioner to participate in the further proceedings but her right to file reply and document was not allowed and at the same time, an erroneous condition was imposed for payment of due monthly to the extent of half. By way of interim order, a direction for payment of rent cannot be passed. On aforesaid ground, impugned order herein has been assailed.

3. Learned counsel for respondents, referring to the provisions of Order 5, Rule 15 of the CPC, submits that service on petitioner's son is a proper service, yet taking liberal view, Rent Tribunal allowed petitioner to participate in the proceedings from the date of passing of impugned order. So far as payment of accumulated rent to the extent of half of the monthly rent of Rs. 2,500/- is concerned, it is nothing but in the shape of cost, which can be imposed while accepting application under Order 9, Rule 9 of the CPC. The Court below has not committed any error in passing the Impugned order, thus there is no ground to assail it.

4. I have considered submissions of the parties and perused record carefully.

5. It is not in dispute that petitioner is a party defendant before Rent Tribunal, Kota and to whom notices were issued. The said notice was served on her son, which is clearly coming out from bare perusal of Annexure-2 to the writ petition, as such, service of notice has not been effected on petitioner in person. The only question raised by respondents is regarding provisions of Order 5, Rule 15 CPC. For ready reference aforesaid provisions is quoted thus:

"Order 9 - ISSUE AND SERVICE OF SUMMONS.

15. Where service may be on an adult member of defendant's family- Where in any suit the defendant is absent from his residence at the time when the service of summons 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 he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him".

6. Perusal of provisions quoted above shows that service on the defendant through any adult member of the family can be made when defendant is absent from his residence and there is no likelihood of his being found at the residence within the reasonable time. Furthermore, there is no agent empowered to accept service of the summons on his behalf, service may be made on the adult member of the family. Perusal of Annexure-2 does not show such a report by process server to bring this case under the aforesaid provision. Defendant was not available at her residence or is not likely to be available within the reasonable time is not the endorsement of process server. In absence of such material provisions of Order 5, Rule 15 of the CPC has no application to the facts of the case. In the light of the aforesaid service on petitioner has not effected. In absence of which, she is having right to participate in the proceedings from the very beginning by recalling the order of ex-parte proceedings. In that regard, affidavit of her son is not necessary because grounds raised in application shows that they are not ha