D.S.Sinha - (1.) HEARD Sri Shashi Nandan, learned counsel for the petitioner and Sri Manoj Misra, learned counsel representing the contesting respondent no. 1.
(2.) ORDERS dated 25th March, 1991 and 28th October, 1989, passed by the respondents no. 2 and 3 respectively, are under challenge in this petition under Article 226 of the Constitution of India. The respondent no. 1 brought an action against the petitioner under section 21 (a) of the U. P. Act 13 of 1972 in the court of the Civil Judge, Azamgarh for his eviction from the disputed premises. It appears that on 28th September, 1988, which was the date fixed for consideration of the matter, the petitioner did not appear and an ex parte order was passed. After the lapse of a period of about three months i,e. on 21st December, 1988, the petitioner applied for setting aside the ex parte order dated 28th September, 1988. Application of the petitioner was rejected by the respondent no. 3 on 28th October, 1989 on the ground that the application was barred by Limitation and there was no prayer for condonation of delay.
(3.) AGGRIEVED by the order of the respondent no. 3 dated 28th October, 1989, the petitioner preferred an appeal before the respondent, no 2. The appeal of the petitioner was also rejected by the respondent no. 2 on 25th March, 1991. Hence this petition. A certified copy of the order-sheet of the case recorded by the respondent no. 3 has been filed in this court along with the counter affidavit filed on behalf of the respondent no.1. The proceedings on 27th May, 1988 are recorded on the order-sheet thus : "27-5-88-Case called out several times, Applicant counsel present. None for O. P. Although he is served sufficiently by refusal. Proceed ex parte against O. P. Fix 26-8-88 for ex parte evidence." Form the proceedings recorded on 27th May, 1988 extracted above, it is clear that the petitioner was served by refusal. There is whisper either in the application dated 21st Sepember, 1988 whereby the petitioner had prayed for setting aside the ex parte order dated 28th September, '88 and a copy whereof is annexure 'II' to the petition or in the petition before this court that the petitioner had not actually refused the notice of the proceedings. Of course, there is a general averment that neither notice of the case was sent to the petitioner nor he had any information in that regard. This general averment, in the opinion of the court, is not sufficient to displace the presumption about service by refusal recorded by the respondet no. 3. The petitioner does not appear to have discharged the burden of rebutting the presumption of service against him.;