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/petitioner on 20.6.2006. Thereafter, the learned trial Judge on 23.6.2006 allowed the application for temporary injunction under Order 39 Rules 1 & 2 of the Code of Civil Procedure, 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 7 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 remarks 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 v. 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 CPC 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