Judgment Satyeshwar Roy, J. 1. By this appeal, the appellant-defendant No. 2 has challenged the legality of the order dated 6-7-1982 by which the Court below has dismissed the application filed by the petitioner under Order IX, Rule 13 of the Code of Civil Procedure (the Code) which was registered as Miscellaneous Case No. 2 of 1982. 2. The Suit No. 42 of 1981 was filed for partition of the suit property of respondent plaintiff. The Court below found from the record that summons had been served on the defendants of that suit including the appellant-defendant No. 2, It, therefore, heard the suit ex parte and decreed the same. According to the appellant, no summon of the suit was ever served on him and that when he learnt about the ex parte decree, he filed an application. Under Order IX, Rule 13 of the Code hut the Court below has dismissed the same rejecting the prayer for the appellant made therein. The grievance of the appellant is that the Court below had no jurisdiction to reject the application filed on behalf of the appellant without giving him opportunity to substantiate his case, that is, non-service of summons of the suit on him. 3. From the perusal of the order impugned, it appears that the Court below had perused the records of the suit and was satisfied from the report of the Process Server and other materials that the summons had been served on the appellant. In my opinion, when the application was filed by the appellant under Order IX, Rule 12 of the Code the Court below was bound to admit the same and to give opportunity to the appellant to led evidence to satisfy that the summons of the suit had not been served on him. The Court below had no jurisdiction to dismiss the application on the basis of the report of the process server and other materials which were available in the records of the suit without hearing the parties. 4. In the result, the appeal allowed. The order dated 6-7-1982 is set aside and the matter is sent back to the Court below for disposing of the same after giving opportunity to the parties to lead evidence in support of their respective cases. 4. In the result, the appeal allowed. The order dated 6-7-1982 is set aside and the matter is sent back to the Court below for disposing of the same after giving opportunity to the parties to lead evidence in support of their respective cases. It is stated on behalf of the appellant that he will appear in the Court below in the Miscellaneous Case No 20 of 1982 on 4th of April, 1983 and the Court below will not issue notice to the appellant fixing a date and respondent No. 1 (plaintiff) shall also appear in the Court below on that date. The appellant shall take steps for service of notice of the Miscellaneous case on the rest of the respondents/defendants by registered post with A/D on that date. There shall be no order to costs.