Kali Charan Kapali and Others vs Abdul Laskar and Others

Greaves, J.—The present application before as is made at the instance of the first party to these proceeding a and the sole question at issue is, whether they had been served with the notice. Notice, was given to them to appear on the 28th January of this year and they failed to appear on that date, and an order was made adjudging possession to be with the second party. Now, it seems to us unlikely that if, in fact, the first party had been served with notice to appear on the 28th January, they would not have, in fact, appeared on that date. It appears that there is a return made by the peon, who is said to have served the notice on the first party, that, it was in fact duly served upon them; but there is no affidavit proving the service; although I am not prepared to say that in all oases an affidavit is necessary, it seems to me that the real test is whether the Magistrate is satisfied that the service has in fact been effaced or not; and if the Magistrate in this case had, when the application for re-hearing was made to him, gone into this matter and come to the conclusion that notice had, in fact, been given to the first party, I should not have been inclined to interfere; but, apparently; it appears that the application for a re opening of the case was rejected without the Magistrate satisfying himself whether the allegation of the first party as to its having been served or not was proved.

In these circumstances, we make, the Rule absolute, and direct that the matter be re heard.

Walmsley, J.

I agree.