CHANDRA PRAKASH, J. This is a second appeal against the judgment and decree dated August 26, 1966 passed by Sri Madan Lal Gupta, III Additional Civil Judge, Agra allowing the appeal of the respondents after setting aside the decree of the trial Court. The defence respondent obtained an ex parte decree from Judge, Small Causes, Agra in suit No. 959 of 1962 for the recovery of some money as arrears of rent. He put that decree into execution and the plaintiff appellant was arrested. Thereafter the plaintiff filed suit giving rise to this appeal on the allegations that the plaintiff appellant was never a tenant of the defendant respondent and the decree obtained by the defendant res pondent was vitiated by fraud. Collusive and fictitious service was obtained against the plaintiff appellant on the summons of that case. On these allegations plaintiff wants a declaration that the aforesaid decree was void and ineffective against the plaintiff appellant. The suit was resisted by the defendant respondent by repudiating fraud. It was also pleaded that the decree obtained by the defendant respondent in the court of Judge, Small Causes, Agra stood as res judicata between the parties. The trial Court after taking evidence of parties came to the con clusion that fictitious and collusive service was made against the plaintiff appellant in S. C. C. Suit No. 959 of 1962 and the decree was obtained against plaintiff after practising fraud. On the above find ings the trial court decreed the plaintiffs suit and granted the injunc tion prayed. Against the above decree the respondent filed appeal in the court below and the court below after hearing the parties reversed the decree of the trial court and dismissed the plaintiffs suit. Feeling aggrieved the plaintiff has come up in second appeal. I have heard learned counsel for the appellant alone as the res pondent has not been represented in this court. After going through the record of the case I have come to the conclusion that the view taken by the court below is perverse and cannot be allowed to stand. The oral evidence produced by the parties consisted of the parties themselves. Mohan plaintiff appeared in the witness box and stated that no process server ever came to him and he was not served in the case No. 959 of 1962 at all. The oral evidence produced by the parties consisted of the parties themselves. Mohan plaintiff appeared in the witness box and stated that no process server ever came to him and he was not served in the case No. 959 of 1962 at all. On the other hand Smt. Kastoori Devi res pondent stated that the plaintiff appellant was duly served in the case. The paper Exh. 1 is the copy of the report of the summons alleged to have been served on the plaintiff appellant in S. C. C. suit No. 959 of 1962. According to this report the process server reported that Mohan Lal appellant met him and the latter took up the summons and copy of the plaint but refused to sign the counter part of the summons. The above report is no service in law. Either the appellant had to be serv ed personally or if the appellant refused to sign the acknowledgment then under Order V, Rule 17 the proper course on the part of the pro cess server was to affix a copy of the summons on the outer door or on some conspicuous part of the house in which the plaintiff appellant originally resided or carried on business. This was not done. As a matter of fact as a prudent man the process server should not have parted with the summons and notices before obtaining signatures of the plaintiff appellant on the counter part. The plaintiff appellant is alleged to have been served by the process server Sumer Singh in the presence of two witnesses namely Qazi Iqbal Ahmad and Narain. The defendant respondent did not produce either Sumer Singh or Qazi Iqbal Ahmad or Narain. The plaintiff appellant had to give evidence of a negative character. If in fact he had not been served with any summons in Suit No. 959 of 1962 he could do no better than to state on oath that he never receive any summons and notices in the case and nobody came to serve sum mons and notices on him and it was for the defendant respon dent to prove by positive affirmative evidence by producing the pro cess server and the witnesses to show that in fact the plaintiff appel lant refused to accept the summons and notices. When the plaintiff appellant was denying the service of the summons the burden of proof lay on the defendant respondent decree holder to establish by cogent evidence that plaintiff appellant was duly served. This was not done in this case. Even lower appellate court has not disagreed with the finding of the trial court that the plaintiff appellant was not duly serv ed. But it has held that merely non service does not amount to fraud or deception. The view does not seem to be correct. When the plain tiff appellant was not served in that case at all it will have to be pre sumed that service was got effected on the plaintiff appellant by practising fraud and deception on him. The view taken by the court be low cannot be allowed to a stand and must be set aside. For the reasons given above the appeal is allowed, the decree of the lower appellate court is set aside and the decree of the trial court is restored with costs throughout. .