SANJAY MISRA,J. - (1.) HEARD Mrs. Rama Goel Bansal learned Counsel for the revisionist and Sri Rishi Chaddha learned Counsel for the plaintiff-opposite party. This revision has been received as a fresh case by nomination and with the consent of learned Counsels is being decided today itself.
(2.) THE defendant-revisionist has challenged the order dated 16.4.2009 passed in S.C.C. Suit No. 26/2003 by the Additional District Judge, Court No. 12, Allahabad u/s 25 of the Provincial Small Causes Courts Act. By the impugned order, the application 26 (ga) filed by the defendant-revisionist has been rejected. The revisionist had filed the application for recall of the order dated 28.2.2004 whereby the case was directed to proceed ex-parte against the defendant he having no filed any written statement. The order indicates that the summons were issue were served by the process server which bore the signature, date and seal of the revisionist-institution acknowledging receipt of the summon on 9.10.2003. The Court below has rejected the application of the defendant holding therein that once summons were served, no sufficient reason has been shown by the defen­dant-revisionist for non-appearance before the Court when the order dated 28.2.2004 was passed for proceeding ex parte against him. It has also been recorded that no affidavit has been filed by the clerk who is alleged to have signed the summons in acknowledgment nor the Counsel for the revisionist has filed any affidavit to indicate that the revisionist had no knowledge about the pendency of the S.C.C. Suit No. 26/2003 and it was he who informed the revi­sionist about the proceedings. The Court has therefore affirmed the order dated 28.2.2004 and directed that the proceedings of the suit should proceed ex parte against the defendant. Learned Counsel for the defendant-revisionist has placed reliance upon a decision of Hon'ble Apex Court in the case of G.P. Srivastava v. R.K. Raizada and others, 2000 (1) ARC 542 to contend that the discretion is normally exer­cised in favour of the defendant provided his absence was not malafide or inten­tional. She has also placed reliance upon a decision of Hon'ble Apex Court in the case of Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425 to state that the provisions of Code of Civil Procedure are procedural in nature and it is to facilitate justice and further its end and not a penal enactment for punishment and penalties. She states that the Hon'ble Apex Court has clearly held in Para­graph 39 as under:- "(39) A much weightier consideration is that the plaintiff may be gravely prejudiced in a given case because, as the learned Rajasthan Judges point out, and as O' Sullivan, J thought, when a case proceeds 'exparte', the plaintiff does not adduce as much evidence as he would have if it has been contested. He contends himself with leading just enough to establish a 'prima facie' case. Therefore, it he is suddenly confronted with a contest after he has closed his case and the defendant then comes forward with an army of witnesses he would be taken by surprise and gravely prejudiced. That objection is, however, easily met by the wide discretion that is vested in the Court. If it has reason to believe that the defendant has by his conduct misled the plaintiff into doing what these learned Judges apprehend, then it might be a sound exercise of discretion to shut out cross-examination and the adduction of evidence on the defendant's part, and to allow him only to argue at the stage when arguments are heard. On the other hand, cases may occur when the plaintiff is not, and ought not to be, misled. If these considerations are to weigh, then surely the sounder rule is to leave the Court with an unfettered discretion so that it can take every circum­stance into consideration and do what seems best suited to meet the ends of justice in the case before it."
(3.) ON the aforesaid basis, the contention is that in the present case when there was a clear denial in the affidavit filed by the Manager regarding non-receipt of summons, it was the plaintiff who had to prove that the summons had been served in the office of the revisionist and for the said purpose, he was required to examine the process server and other requirements for discharge his burden of proof.;