Gian Kaur and Others vs Dilbagh Singh

Rajendra Nath Mittai, J.—This revision petition has been filed against the order of the Additional District Judge, Hoshiparpur, affirming the order of the trial Court by which the application for setting aside ex parte decree was dismissed.

Briefly, the facts are that the Plaintiff-Respondent instituted a suit for specific performance against Swaran Singh, Predecessor-in-in-terest of the Petitioners on 15.12.1982. An ex parte decree was passed against Swaran Singh on 19.10 1983. He filed an application for setting aside the ex parte decree on 31.10.1983. The application was contested by the Plaintiff. Swaran Singh died during the pendency of the proceedings for setting aside the ex parte order. His legal representatives who are the Petitioners now were brought on the record The Court held that Swaran Singh had been duly served and there was no sufficient ground for setting aside the ex parte decree. Consequently, it dismissed the application. In appeal by the Petitioners, the order of the trial Court was upheld The Petitioners have come up in revision to this Court against the said order.

It is contended by Mr. Sarjit Singh that the service on Swaran Singh in ordinary way was effected by affixation as he was stated to be out of station on the date of service. The summons sent under registered cover, acknowledgement due, was received back with an endorsement that "he refused to accept service" Swaran Singh appeared as his own witness and deposed that he did not refuse to accept any registered cover from a postman. In the circumstances, it could not be held that he had been served

I have heard the learned Counsel for the parties at the consider able length. However, I find substance in the contention of Mr. Sarjit Singh It is true that the postman made a report that Swaran Singh had refused to accept service and that report is admissible into evidence under Order 5 Rule 19-A of the Code of Civil Procedure. However, the presumption which arises from the report is rebuttable. Swaran Singh stepped into the witness-box and deposed that no postman came with a registered notice to serve him. From the statement the initial presumption against Swaran Singh was rebutted and the onus shifted on the decree-holder to show that the report of the postman was correct. He, however, failed to produce the postman to prove the same. Consequently, I am of the opinion, that on the basis of the alleged endorsement of refusal on the registered cover, it cannot be held that Swaran Singh was properly served Regarding the service in the ordinary way, as reported by the process server, the Courts below did not act on that report Mr. Sarwan Singh, learned Counsel for the Respondent, has drawn my attention to a decision of Rajasthan High Court in Prakash Chander Vs. Smt. Sunder Bai and Another, wherein it was held that in view of the concurrent finding of the Courts that the Defendant had been served, the finding should not be upset in the revision petition. However, that case is distinguishable. In that case, the Plaintiff produced the postman to show that the report on the registered cover was correct. As mentioned above, the Plaintiff did not produce the postman in this case. 1 am of the view, the ratio in that case is not applicable to the facts of the present case. The Court has acted with material irregularity in not setting aside the ex parte order.

For the aforesaid reasons, I accept the revision petition and set aside the ex parte decree. The Court shall decide the main suit on merits. The parties are directed to appear in the trial Court on 21.1.1988. No order as to costs.