V.K. Agrawal, J.

1. By the impugned order, application of defendant/respondent under Order 9 Rule 13 read with Section 151 of CPC, for setting aside ex-parte judgment and decree dated 25-10-91 in Civil Suit No. 105-A/91 was allowed and the suit was directed to be proceeded biparte.

2. The plaintiff/petitioner filed a suit for eviction of defendant/respondent. Summons for settlement of issues was issued by the Trial Court. The process server reported that the defendant/respondent had refused service of summons. Accordingly, the Trial Court proceeded against him ex-parte. After recording evidence of plaintiff/petitioner ex-parte judgment and decree was passed.

3. The defendant/respondent filed an application under Order 9 Rule 13 read with Section 151 of CPC, stating that the summon was never tendered to him and that he did not refuse to accept it and that the plaintiff/petitioner had obtained the ex-parte judgment and decree by playing fraud on the Court. Therefore, he prayed that the said ex-parte judgment and decree be set aside.

4. The plaintiff/petitioner resisted the application. According to him, the summons of the suit was duly tendered to the respondent and that he refused