Tarun Agarwala - (1.) -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. 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. 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.
(3.) 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 come out with a clear case that no service was made. 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 no contain the copy of the plaint or the summons and that a blank envelope was sent.;