1. This petition is directed against an order dated 25.2.2010 by III Additional. District Judge (Fast Track Court), Shahdol in Case No. 1/2010 by which the trial Court rejected the application under Order 9, Rule 7, Civil Procedure Code.

2. It is submitted by the petitioner that the trial Court erred in rejecting the application filed by the petitioner on the ground that there was implied refusal of the summons on behalf of the petitioner and the petitioner ought to have moved an application within a period of 30 days from the date when the ex-parte order was passed. It is further submitted by the petitioner that no summons was served on the petitioner and on getting knowledge of the ex-parte 'order, he moved an application on 25.2.2010, but the trial Court erred in rejecting the application.

3. Learned counsel appearing for the respondent/election petitioner supported the order who submitted that on 8.2.2010, process-server offered summons to the petitioner, but the petitioner on the pretext that he was busy in some meeting avoided service and asked process-server to come on next day. On next day, when process-server visited the house of the petitioner, he was not available as he had gone to Shahdol. As no other adult member was found in the house, the process-server returned the summons. The election Tribunal considering these aspects in order dated 15.2.2010 directed that the petitioner be proceeded ex-parte.

4. From the perusal of the summons report of the process-server on the reverse side of summons Annexure P/6, we find that he visited the petitioner and asked him to receive notice and copy of the election petition, but petitioner stated to him that he was busy in a meeting and he will receive the summons after reading on next day. On next day, when process-server visited the house of the petitioner, it revealed him that the petitioner had gone to Shahdol and there was no definite information of return of petitioner. No major member of the family of the petitioner was available on whom notice could have been served, so process server with the report that the notice could not be served, returned it to the trial Court. The trial Court considered these aspects in order dated 15.2.2010 and found that non-receiving the notice on earlier date, on the pretext of meeting, falls within a purview of refusal and treating this as service on the petitioner directed to proceed ex-parte against the petitioner and the case was fixed for reply of other respondents on 25.2.2010. On 25.2.2010, petitioner preferred an application under Order 9, Rule 7, Civil Procedure Code which has been rejected by the impugned order.

5. Aforesaid facts specifically reveal that on 9.2.2010 in fact that summons was returned as unserved and on 8,2,201 0, though summons and copy of election petition were offered to the petitioner but he asked the process-server to come on next day, so that he can receive the notice after going through it. The process server relying on the aforesaid contention of the petitioner returned back and had not treated aforesaid as refusal. On next date when petitioner or any other adult member of the family was not found in the house, process-server returned the summons as unserved.

6. The M.P. Municipalities (Election Petition) Rules, 1962 provides the procedure in respect of enquiry of an election petition under Rule 5 which reads as under:

5. Procedure – Subject to the provisions of the Act of these rules, every election petition shall be enquired into by the Judge, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits;

Provided that it shall only be necessary for the Judge to make a memorandum of the substance of the evidence of any witness examined by him.

7. Rule 3 provides a copy of the election petition to be served on each respondent. In absence of any specific procedure for service of summons, the procedure envisaged in Rule 17 of Order 5, Civil Procedur