JUDGMENT Hon’ble Tarun Agarwala, J.—Heard the learned counsel for the parties. 2. The suit was decreed ex parte in the year 1991. The defendant came to know about the ex parte decree in the year 1996 and, accordingly moved an application under Order IX Rule 13 of the C.P.C., for setting aside the ex parte decree. Objections were filed by the plaintiff and the application was rejected by the trial Court, against which, a Misc. Appeal was filed, which was also rejected. The defendant, being aggrieved by the rejection of his application, has preferred the present writ petition. 3. The learned counsel for the petitioner submitted that the plaintiff had earlier filed a suit in the year 1988, in which the petitioner had appeared and contested and which was dismissed in the year 1989 and consequently the second suit was filed surreptitiously and deliberately the service of the summons was not made. 4. The Court below has rejected the application of the petitioner on the ground that the petitioner was served with the summons by way of refusal. The Court below further observed that other defendants who were his brothers were served and had appeared in the suit and consequently the petitioner was also deemed to have been served with the summons. 5. I have perused the record and, in my opinion, there cannot be any deemed presumption on service on the sole ground that the other defendants are brothers of the petitioner who had appeared in the suit. There is no finding that all the brothers are living together or residing under one roof. Consequently, the presumption of service, which is clearly rebuttal, cannot be allowed to stand especially when the petitioner has came out with a clear case that no service was made. 6. There is no finding that all the brothers are living together or residing under one roof. Consequently, the presumption of service, which is clearly rebuttal, cannot be allowed to stand especially when the petitioner has came out with a clear case that no service was made. 6. Further, this Court finds that the service of the summons by refusal is not a proper service in the eyes of law as required under Order V Rule 2 of the C.P.C. The order sheet of the Court below indicates that the envelope containing the plaint and summons came back with the endorsement of refusal by the petitioner and this endorsement has been treated to be sufficient service against the petitioner, but a striking fact has been ignored by the trial Court, namely, that the trial Court itself opened the envelope which did not contain the copy of the plaint or the summons and that a blank envelope was sent. 7. In Shafiqur Rahman Khan v. IInd Additional District Judge, Rampur and others, AIR 1983 All 12 , a Division Bench of this Hon’ble Court has examined the provisions of Order V Rule 2 of the C.P.C. and held as under : "This provision makes it incumbent and mandatory for every summons to be accompanied by a copy of the plaint. Then a statute uses the word “shall” prima facie it is mandatory. The word “shall” raises a presumption that the particular provision is imperative. In ordinary parlance, the term “shall” is considered as a word of command and one which always or which must be given a compulsory meaning. It has a peremptory meaning and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which must be discharged. Applying the aforesaid rule of construction, interpreting Order V, Rule 2 of the Civil P.C., it appears to us that the word “shall” has to be construed imperatively and failure to be accompanied by a copy of the plaint would not amount to service of summons as required by Order V, Rule 2, C.P.C." 8. The Court held that the envelope which is not accompanied by a copy of the plaint would not amount to service of the summons as required under Order V Rule 2 of the C.P.C. 9. The Court held that the envelope which is not accompanied by a copy of the plaint would not amount to service of the summons as required under Order V Rule 2 of the C.P.C. 9. In view of the aforesaid Division Bench decision, which is clearly applicable to the present facts and the circumstances of the case, this Court holds that the service could not be held to be sufficient under Order V Rule 2 of the C.P.C. Since the petitioner was not served, the ex parte decree was liable to be set aside and his application under Order IX Rule 13 of the C.P.C. was liable to be allowed. 10. In view of the aforesaid the writ petition succeeds and is allowed. The impugned orders dated 7.10.1997 passed by the trial Court are quashed. The application under Order IX Rule 13 is allowed subject to payment of cost of Rs. 5000/- which the petitioner will deposit by means of a demand draft in favour of the plaintiff within four weeks from today. The ex parte decree dated 31.10.1991 in so far as it relates to the petitioner is concerned is recalled. The suit is restored and the trial Court will proceed from here onwards. ———