**1** IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Writ Petition No.13599 of 2009 Sawai Singh son of Shri Onard Singh and Another ..... Defendant-appellants VERSUS Additional District Judge No.1, Sikar & another ..... Plaintiff-respondents Date of Judgment :::: 06/01/2010. Hon'ble Mr. Justice Dalip Singh Ms. Gayatri Rathore Mr. Hem Singh Rathore Ms. Madhvi Goswami, Counsel for the Defendant-petitioners Mr. A.S. Shekhawat, Counsel for the Plaintiff-respondents *** By the Court : Heard learned counsel for the parties. Perused the impugned order by which the application under Order 9 Rule 13, C.P.C. submitted by the petitioners has been rejected by the learned trial Court and the appeal filed against the same has also been dismissed. In short, the submission of the learned counsel for the petitioners is that the order to proceed ex-parte was passed on the ground that the counsel, who had appeared on behalf of **2** the defendants had pleaded no instructions on behalf of the defendants. It is contended by the learned counsel that in fact the defendants had not been served with the summons and so far as the defendant No.2 – Dhanna Ram is concerned, he even did not give any `Vakalatnama' to the counsel, as he was not served and the counsel had only given the memo of appearnace on his behalf without any instructions as he had not been served. So far as the question of service of summon is concerned it was considered as sufficient on the basis of the alleged report of refusal to accept the summons made by the process-server. It is contended by the learned counsel that the said report has been made in the presence of a witness, who is admittedly not a witness of the locality i.e. the Village, which is different from that where the defendant-petitioners resides and thus no reliance can be placed on the same. This fact is not in dispute. It is also not disputed by the learned counsel for the respondents that the counsel appearing for Dhanna Ram had not filed his `Vakalatnama' and his presence was recorded on the basis of the memo of appearance filed by an Advocate, which was not signed by the defendant. As such the learned Court below erred in holding that the defendant was **3** represented by a counsel, who pleaded no instructions. Having regard to the totality of the facts and circumstances, I deem it just and proper to set aside the impugned order and allow the application for setting aside the ex-parte decree on the condition that the parties shall appear before the learned trial Court on 27.01.2010 and pay a costs of Rs.1000/- (rupees one thousand only) to the plaintiff. It is further directed that the defendant-petitioners shall file the written-statement, if any on or before 27.01.2010 itself and no adjournment shall be granted by the Court for this purpose. It is expected that the learned trial Court would proceed with the trial as expeditiously as possible. The writ petition stands allowed to the extent as aforesaid. (Dalip Singh), J. Ashok/