JUDGMENT : Misra, J. - Defendant is the Petitioner, In Original Suit No. 204 of 1960 in, the Court of the Munsif, Khurda, process was issued, both through Court and by registered post, on the Defendant on 31-8.1960. On 25-10-1960, the order passed was to the effect Summons through Court refused. Plaintiff proves service. Such service is accepted as sufficient. Defendant is absent on call and set ex-parte. To 8-11-1960 for exparte evidence. No orders were passed as to what happened to the notice sent through post. The suit was beard on 8-11-1960 and an ex-parte decree was passed. On 7-12-1960, the Petitioner filed an application under Order 9, Rule 13, CPC to set aside the ex-parte decree. It was, however, rejected by the Courts below and the Civil Revision has been filed against the Appellate judgment dated 21-4-1962. 2. Order 9, Rule 13 lays down In any case in which a decree is passed ex-parte against a Defendant, he may apply to the Court by which the decree was passed for an order to set it, aside, and if he satisfied the? Court that the summons was not duly signed the Court shall make an order setting aside the decree as against him. In this case, the summons?s were served under Order 5, Rule 17, Code of Civil Procedure. The report of the process-server is that the Defendant, refused to receive the summons, so it was served by affixture. Order 5, Rule 19, CPC prescribes. Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter it think fit and shall either declare that the summons as been duly served or order such service as it thinks fit. In this case, the return has been verified by the affidavit of the serving officer. There is further affidavit from the Plaintiff that the summonses were tendered to the defendant in his presence who refused to accept the same. In its order dated 25-10-1260, the trial Court said that the Plaintiff proves service and it accepted such service as sufficient. In this case, the return has been verified by the affidavit of the serving officer. There is further affidavit from the Plaintiff that the summonses were tendered to the defendant in his presence who refused to accept the same. In its order dated 25-10-1260, the trial Court said that the Plaintiff proves service and it accepted such service as sufficient. Rule 10, Chapter II of the General Rules and Circular Orders of this Court, (Civil), Vol. I, insists upon strict adherence to the necessary particulars in Order 5, Rule 19, Code of Civil Procedure. As the process server had verified the service return, it was optional to the learned Judge whether he would examine the process-server on oath or not. There is no flaw in his order and it is in compliance with the requirements of Order 5, Rule 19, Code of Civil Procedure. 3. Under Order 9, Rule 13, CPC the onus is on the applicant to satisfy the Court that the summons was not duly served. The applicant examined two attestors to the summonses. The courts below have not placed reliance on the evidence of the attestors. Question arises as to who would examine the process-server. In support of the contention that the Plaintiff would examine the process-server, Mr. Misra places reliance on AIR 1936 Mad 60. This decision is not of much help as in that particular case the assertion of the applicant was not challenged by any evidence contra. His Lordship, however, made an observation that when the party concerned denied the fact of service, it was desirable that the process-server, who purported to have served the notice, should be put in the witness-box, and those who denied service should be given opportunity for cross-examination. In a case where the Defendant asserts that there was no service by affixture and the Plaintiff does not oppose it, the question as to who would examine the process server is somewhat academic. But if the Court records an order which satisfies the tests laid down in Order 5, Rule 19, the applicant is confronted with the difficulty of getting over the order of the Court regarding a finding that service was sufficient. In such cases, it is incumbent on the applicant to examine the process-server and get a statement from him that the summonses were never offered to him. It is contended by MI. In such cases, it is incumbent on the applicant to examine the process-server and get a statement from him that the summonses were never offered to him. It is contended by MI. Misra that when the Defendant is to prove the negative, he should not be called upon to establish the positive through the evidence of the process server. 1 am unable to accept this argument. The rule throws the onus on the applicant, and a mere denial as against the orders of the Court may not be sufficient to discharge the onus when positive evidence? in support of the plea of denial could be available. If the process-server is called and he supports the case of the Defendant, then the effect of the previous order of the Court accepting sufficiency of the service is whittled down. It is argued that if the applicant himself summons the process server, he would not be in a position to cross-examine him. If the process-server in his examination-in-chief supports the defence case that he personally did not know the Defendant who was identified by either the Plaintiff or his agent, cross-examination is not necessary. But if the process-server adheres to his report, it is open to the Defendant to take permission of the Court u/s 154, Evidence Act, for cross-examination. Opportunity for cross-examination is to be freely granted and the granting of such permission does not amount; to prejudging by the Court of the veracity of the witness AIR 1940 Pat 289. In my view, it is incumbent upon the applicant to examine the process server and get a statement from him that the report, previously given, did not represent the correct state of affairs. This does not, however, mean that in every case, the applicant must of necessity examine the process-server, and in his absence the applicant?s case is liable to be dismissed. If otherwise satisfactory evidence can be given that the service return does not represent the correct state of affairs, the examination of the process-server is not essential. Generally however the examination is necessary as it is he who has given the service report and on whose statement the Court accepted the service to be sufficient. After the entire evidence is before the Court, it is open to it to take a particular view and record a finding whether the applicant discharged the onus lying on him. 4. Generally however the examination is necessary as it is he who has given the service report and on whose statement the Court accepted the service to be sufficient. After the entire evidence is before the Court, it is open to it to take a particular view and record a finding whether the applicant discharged the onus lying on him. 4. In this case the Petitioner is supported by the evidence of the two witnesses who have attested the service report. They cannot be declared liars merely because they deposed to a state of fact contrary to what is mentioned in the service report. If the process-server had been examined by any of the parties to say that the Defendant was identified at the time of service to the knowledge of the two attestors, it is certainly open to the court to discard their evidence. When the process server has not been examined, there seems to be no reason for discarding their evidence. I am satisfied that the courts below exercised their jurisdiction with material irregularity in not keeping in view the correct law in the matter and by rejecting the evidence of the two attestors without giving any reason. 5. I would set aside the judgment dated 21-4.1962 of the learned lower Appellate Court, restore the suit to file and direct that the case be disposed of as soon as practicable. The Civil Revision is allowed. As there is no appearance for the other side, there will be no order as to costs. Final Result : Allowed