- (1.) BY the Court: This Misc. Appeal under Order 43 Rule 1 of CPC has been preferred against the order dated 9.3.2007 passed by the District Judge, Bharatpur whereby the application under Order 9 Rule 13 of CPC has been rejected. The matter was fixed for disposal of the application but with the consent of parties, appeal has been heard finally. The short facts of the case are that the suit was filed against the appellant defendant for recovery of Rs. 99,909.00. In the suit, summons were issued and it was alleged that on 3.4.2006, the defendant appellant refused to accept the summons and trial court accepted it as deemed service and exparte decree was passed in favour of the plaintiff respondent. The present appellant defendant moved an application under Order 9 Rule 13 of CPC which was dismissed. Hence this appeal.
(2.) THE contention of the present appellant is that summons have in fact never been served upon him and the postman was not examined before the court. The postman was in connivance with the plaintiff, has wrongly made the report on the summon, the present appellant could know about the decree only on 19.5.2006 when a threat was given by the plaintiff respondent. He moved an application under Order 9 Rule 13 which was wrongly dismissed. Per contra, contention of the respondent plaintiff is that present appellant was knowing about the fact that the suit was decreed as on 5.1.2006 an FIR was got registered by the present appellant in which copy of civil suit was filed. Hence the fact of the suit was within the knowledge of present appellant and he malafidely did not appear before the court below, summons were duly served and there was no occasion to court below to allow application under Order 9 Rule 13. Heard learned counsel for the parties and perused the impugned order. The suit was decreed in favour of the appellant respondent on 27.4.2006, the summons in the suit were sent to the appellant defendant which were refused by him on 3.4.2006 and the court below has deemed the service and the matter was heard exparte. The contention of the present appellant is that postman should have been examined and the he has relied upon WLC 2007 (2) page 133, Jagdish Prasad Swami vs Ramji Lal Joshi, where it has been held that postman shall be examined to prove the factum of service of summon. Further, reliance has been placed on 2002 (5) SCC 377, Sushil Kumar Sabharwal vs Gurpreet Singh and others, where it has been held that the knowledge of pendency of suit does not amount to his knowledge about the date of hearing and further more reliance has been placed on WLC (Raj.) UC 2007 page 276 Gopal Lal Parashar @ Gopal Lal Sharma vs Shri Sudhir Sharma. Per contra, the contention of the respondent is that the present appellant was having knowledge of the suit as well as the date of hearing. He has alleged the fact of the suit in FIR. Final report was filed after investigation against which protest petition was filed by the present appellant before the competent court. Protest petition was rejected and revision was also filed against that order hence the present appellant was having ample knowledge about the pendency of the suit and of the proceedings. He has further relied on the provision of section 114 (f) of Evidence Act that there is presumption that the addressee has received the letters sent by the registered post and reliance has been placed on 2011 (3) SCC 545 Parimal vs Veena @ Bharti where proviso of Order 9 Rule 13 of CPC has been explained and it has been explained and it has been held in para 12 as under: "It is evident from the above that an ex-parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. "
(3.) FURTHER reliance has been placed on 2010 (9) SCC 157, Greater Mohali Area Development Authority and others vs Manju Jain and others where it has been held as under: "that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra. " Again reliance has been placed on 1989 (2) SCC 602, Gujrat Electricity Board and another vs Atmaram Sungomal Poshani, it has been held as under: "There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. " ;