JUDGMENT 1. - Heard learned counsel for the parties. 2. This appeal is directed against the order dated 26.2.2004 by which the trial Court dismissed the appellant/defendant No. 2's application filed under Order 9, Rule 13 CPC seeking setting aside of the ex-parte decree dated 11.4.1997. 3. Brief facts of the case are that the plaintiff/respondent No.1 filed a suit for declaration, partition and injunction against the defendants-Rajender Pal and Nitranjan Pal on 10.3.1997. The Court issued summons to the defendants by order dated 17.3.1997. On the next date i.e. on 11.4.1997, power was filed on behalf of respondent No.1 Rajender Pal. On 11.4.1997 itself, the Court ordered that since the summon of the defendant No. 2-Nitranjan Pal has been served by affixture of summon on house of the defendant No. 2, therefore, the service upon the defendant No. 2 is, sufficient. The trial Court passed the order to proceed ex-parte against the defendant No. 2. The suit was ultimately decreed by the trial Court on 29.5.1998. When the defendant No. 2 came to know about the decree, he submitted an application for setting aside of the decree u/O 9 R. 13 CPC before the trial Court on 6.11.2000. The appellant alleged that he came to know about the ex-parte decree from his advocate who was conducting the revenue matter before the Board of Revenue at Ajmer. According to appellant, his Ajmer advocate was told by the advocate of the plaintiff of this case that the plaintiff and the defendant No. 1 have obtained ex-parte decree on 29.5.1998 from the 1 Court at Sri Ganganagar. The appellant, therefore, submitted this application under Order 9, Rule 13 CPC with the allegations that the appellant has already filed a suit in the revenue Court on 15.5.1996 wherein the plaintiff of this case Sarla Beri and defendant No. 1 Rajendra Pal both were defendants and they filed joint written statement. According to the appellant-Sarla Beri and Rajendra Pal 1 collusively obtained this decree. It is submitted that the summon was never served upon the appellant. 4. According to the appellant-Sarla Beri and Rajendra Pal 1 collusively obtained this decree. It is submitted that the summon was never served upon the appellant. 4. It will be worthwhile to mention here that only once the summon was issued to the defendant No.2 by the trial Court and that was alleged to have been offered to the co-defendant No. 1- Rajendra Pal and he refused to 2 accept the summon and because of this reason only, ex-parte order was passed against the appellant in the suit. 5. The plaintiff contested the appellant/defendant's said application and prayed that the application may be dismissed. The defendant No. 1 Rajendor Pal who did not accept the summon of defendant No. 2 also filed reply to 2 support plaintiff in getting the defendant No. 2's application for setting aside the impugned decree, dismissed. 6. The trial Court vide order dated 26.2.2004 dismissed the appellant s application under Order 9, Rule 13 CPC. Hence, this appeal. 7. Since during the pendency of the petition, the defendant-Nitranjan 3 Pal expired and his legal representatives were taken on record, therefore, this appeal is by the legal representatives of defendant No. 2-Nitranjan Pal. 8. According to learned counsel for the appellant, the summon of the suit was never served upon the appellant and in fact, a collusive decree has been obtained by the plaintiff and the defendant No. 1 (respondent No. 2) 3 against the appellant's predecessor. It is also submitted that from the record itself, it is proved that the summon was never offered to the plaintiff and no efforts were made by the Court below to serve the notice personally on the appellant. It is also submitted that in the facts of this case even if summons were offered to co-defendant, defendant No. 1 by the process server and the 4 defendant No. 1 refused even that this is not valid and legal service of summon upon the defendant No. 2. 9. Learned counsels appearing on behalf of the respondents No. 1 & 2 vehemently submitted that the trial Court was right in dismissing the application of the appellant in view of the fact that the notice was duly served 4 upon the appellant and the decree was passed on 29.5.1998 and application for setting aside the ex-parte decree was submitted on 6.11.2000 i.e. after more than 11/2 years. Learned counsels for the respondents vehemently submitted that when the advocate on behalf of appellant submitted his power before the Board of Revenue on 17.7.2000, then it cannot be believed that the 5 appellant's advocate got the information of ex-parte decree on 28.10.2000. Therefore, the trial Court was right in holding the defendant's application under Order 9, Rule 13 CPC barred by time. 10. I considered the submissions of learned counsel for the parties and perused the record. 11. At the outset, it can be held that the trial Court failed to appreciate the facts before deciding the defendant's application under Order 9, Rule 13 CPC. The application for setting aside the ex-parte decree was submitted by the defendant No.2 in a case where it has been alleged that the summon was offered to the co-defendant. First of all, in such type of suit when summon of one defendant is offered to other defendant and that other defendant did not accept the summon, then the Court should have treated the service as not sufficient because that prima facie indicates that the co-defendant may have conflicting interest with the other defendant and, therefore, he is not accepting the summon of the suit for the co-defendant. It is just and proper for the co-defendant not to accept the summon of the other co-defendant when his interests are in conflict with the co-defendant. 12. In this case, unfortunately, the trial Court even did not apply its mind to the fact that the defendant No. 1-Rajendra Pal appeared through his advocate on the date fixed by the Court in summon but nothing has been disclosed why the defendant No. 2 who if had good relation with the defendant No.1 is not appearing on that day. Apart from it when the defendant No.1 submitted reply to the defendant No. 2's application under Order 9, Rule 13 CPC before the trial Court, the position became absolutely clear that the interests of the defendants No. 1 & 2 were not common rather they were in conflict with each other. In that circumstance, the trial Court should have presumed that the summon offered to the defendant No. 2 to the defendant No. 1 was not offer of summon to a person who could have accepted the summon on behalf of the defendant No. 2. In that circumstance, the trial Court should have presumed that the summon offered to the defendant No. 2 to the defendant No. 1 was not offer of summon to a person who could have accepted the summon on behalf of the defendant No. 2. The words as used in Order 5, Rule 5 CPC "....service may be made on any adult member of the family" and "who is residing with him" are required to be read meaningfully and not mechanically. A family member living with defendant does not mean a family member living in the same house only. Even in some cases, involuntary or under compelling circumstance, two family members may 'reside' together but that will not be sufficient for the purpose of service of summon of one person upon other persons. 13. It will be worthwhile to mention here that the trial Court even did not apply its mind to the reply filed by the defendant No. 1 who clearly disclosed by his stand that he (defendant No. 1) could not have been a person to whom summon could have been offered for the purpose of service of summon upon the defendant No. 2. In the reply, the defendant No. 2 failed to disclose any reason why he did not inform the defendant No. 2 that his summon was offered to defendant No. 1 by the process server of the Court and he refused to accept it. In his reply, the respondent No. 2 nowhere stated that he was eligible to accept the summon of the suit on behalf of the defendant No.2 and still he refused to accept the summon. In a suit for partition of family property dispute or family disputes, the Courts should be very cautious in the matter of service of summons upon the various defendants because in the suit for partition and in suit of like nature, the parties are normally family members and the plea of offer of summon to one of the family members may not be a sufficient ground for holding that the summon was duly offered to the party to the suit. By not taking due care in such matters, particularly in the matter of suit for partition partnership and dissolution of family partnership firms and suit of like nature, there is possibility of offering summon to the party having conflicting interest cannot be ruled out. By not taking due care in such matters, particularly in the matter of suit for partition partnership and dissolution of family partnership firms and suit of like nature, there is possibility of offering summon to the party having conflicting interest cannot be ruled out. Due care is required to be taken for service of the defendants in such type of cases to avoid necessary litigation and multiplicity of the 5 proceedings. None of the above facts were considered by the trial Court while deciding the application under Order 9, Rule 13 CPC. 14. In view of the above, it is clear that the defendant No. 2 was not served with the summon of the suit nor he could have got the knowledge of the suit and decree. In addition to above, no due care was taken by the Court 1 to see that whether R. 15 of O. 5 was fully complied with or not. Rule 15 of O..5 clearly provides that when the defendant is absent from his residence at the time when the service of summon is sought to be effected upon him at his residence and there is no likelihood of his being found at the residence within a reasonable time, then the summon can be served by service of summon 1 upon the adult member of the family. Rule 11 of O. 5 also provides that where there are more defendants than one, the service of summon shall be made on each defendant. This specific provision for service of summon upon the defendants where there are more defendants clearly makes it clear that the service should be on each defendant. It is true that as per R. 15, summon of 2 one defendant can be served upon his family member who is residing with him but if R. 11 is read with R. 15, then it is clear that the service of summon should be upon the defendant first and when there is no likelihood of conflicting interest between the defendants, the Court, may presume service sufficient but co-defendant-family member's refusal to accept summon of the co-defendant in the nature of cases mentioned above may be presumed that co-defendant does not want to represent the other defendant, then the service on that family member cannot be treated as valid service. In addition to above, in this case, neither there is a report of the process server nor there is a finding of the Court below that there was no likelihood of the defendant: being found in some time. In view of the above also, it is not a case of defect in service of summon upon the defendant but is a case of no service of summon upon the defendant No. 2. 15. So far trial Court's finding that since the defendant No. 2's advocate in Revenue Board filed the power on behalf of the defendant No. 2 on 17.7.2000, therefore, it cannot be believed that the defendant No. 2's advocate could get the knowledge of the decree passed at Sri Ganganagar Court on 28.10.2000, the trial Court merely proceeded on assumptions as the trial Court was under impression that on the day when the power was filed by defendant's advocate, the Plaintiff's advocate would have informed the defendant's advocate about the decree passed by the civil Court at Sri Ganganagar. The trial Court had no reason to hold that the presumption can be drawn that the advocate of the appellant got knowledge of the ex-parte decree on 17.7.2000 when his advocate filed the power in Board of Revenue. 16. In view of the above discussion, the order of the trial Court is absolutely perverse and deserves to be set aside, hence, set aside. Accordingly, the appeal is allowed with a costs of Rs. 5,000/- which shall be paid equally by both the respondents to the appellant. The application under Order 9, Rule 13 CPC is allowed and the ex-parte decree dated 29.5.1998 and order to proceed ex-parte against the defendant No. 2 dated 11.4.1997 are set aside. The trial Court shall decide the suit in accordance with law.Appeal allowed. *******