PRAKASH KRISHNA, J. - (1.) BY means of the present writ petition, the petitioner who was defendant in O.S. No.239 of 1996 has sought the quashing of the orders passed by the trial Court and the Appellate Court rejecting the application under Order 9 Rule 13 CPC.
(2.) THE aforestated suit was instituted by the respondents herein for possession on the allegation that the defendant was licensee whose licence has been terminated by means of a registered notice. The suit was decreed exparte on 2nd of January, 1998. The decree was put to execution. Thereafter, an application under Order 9 Rule 13 CPC to set aside the exparte decree was filed mainly on the allegation that the defendant was not served with the notice and summon of the suit. The said contention has not been accepted by the two Courts below, hence the present writ petition. The learned counsel for the petitioner submits that the Courts below have committed illegality in placing the entire burden upon the defendant to prove that notice of the suit was not served on him. He submits that in view of the fact that certain record has been weeded out, it was not possible for the petitioner to prove the said fact as such the benefit of doubt should be given to the petitioner who happened to be defendant. In reply, the learned counsel for the plaintiff respondents submits that the notice was served on the defendant, by ordinary course as well as by registered post. He further submits that an order to proceed exparte was passed in the suit, but thereafter as the plaintiff applied for amendment in the plaint, a second notice through registered post was issued. In sum and substance the argument is that the petitioner deliberately failed to appear to contest the suit. Considered the respective submissions of the learned counsel for the parties.
(3.) THE only question involved in the present writ petition is whether the Courts below were justified in rejecting the application under Order 9 Rule 13 CPC. It may be noted that before instituting the suit, a notice determining the licence was given by registered post. Said notice was returned with endorsement of refusal and it is exhibit-1 on the file of the suit. Its receipt is also on the record as Exhibit 1/2. It has been further found that the notice of the suit was served by ordinary course which was returned by the process server with endorsement of refusal. It was not found sufficient and the Court ordered that steps be taken to serve the defendant by registered post. Steps were taken by the plaintiff and notice was issued by registered post which was returned with the endorsement of refusal. The Court then on 25th of August, 1996 passed order to proceed exparte.;