JUDGMENT - D.M. REGE, J.:---This Miscellaneous Application under Article 227 for the Constitution is by the petitioner-tenant for setting aside of the Appellate Bench of the Small Causes Court dated 28-3-1971 rejecting the petitioners Revision Application against the order of the learned Judge of the Court of Small Causes at Bombay dated 21-6-1971 rejecting the petitioners application for setting aside an ex parte decree passed against him. 2. Since during the pendency of his application the original petitioner had dies his heirs were brought on records as the petitioners. 3. Few facts necessary for appreciating the contentions of the learned Advocate for the petitioner in this application are as follows. 4. The present petitioners are the heirs and legal representatives of the deceased original tenant. They were occupying a ground floor premises 39-A, at Chuim Village, Khar, Bombay. On 15-6-1970, the respondent-owner served a notice of termination of tenancy against the original tenant on the ground that he wanted to carry out repairs for bona fide occupation of the premises and also on the ground of sub letting. In reply the original petitioner i.e. the tenant denied all the said contentions and, therefore, the landlord respondent filed a suit in the Court of Small Causes, Bombay being R.A.E Suit No. 5110 of 1970 asking for the eviction of the original tenant from the premised on the same ground. After the suit was filed the summons in the suit was first tried to be served personally on the original petitioner was the suit premises. Since, however he was not found residing there, with the lease of the Court, the summons was sent by registered post at his premises apposite Uttan Church at Uttan village near Bhyander. However, the same was returned by the post office with the remark refused. On the basis of the refusal of the summons, on 5-2-1971 an ex parte decree was passed against the original-petitioner. It is the case of the petitioner that thereafter on 18-2-1971 when he had gone to the residence of the respondent to tender the rent, the respondent had refused to accept the rent and had informed him that the ex parte decree had already been passed in the suit against him. It is the case of the petitioner that thereafter on 18-2-1971 when he had gone to the residence of the respondent to tender the rent, the respondent had refused to accept the rent and had informed him that the ex parte decree had already been passed in the suit against him. On their coming to know about the ex parte decree the petitioner made an application being Miscellaneous Notice No. 282 of 1971, to the trial Court to have the decree set aside on the ground that the summons was not served on him. During the course of the hearing of the said application, the respondent had produced for being examined the postman who had tried to serve the summons of the original petitioner and who on his refusal to accept the summons had endorsed a remark refused on the packet. However, the Court directed him to file an affidavit. Accordingly, the said postman one Mr. Purandare filed an affidavit dated 26-4-1971 to that effect. Thereafter the original petitioners daughter who is opponent No. 2 herein as well as the original petitioners brother one Peter DSouza had filed counter-affidavits dated 7th June, 1971 denying the presence of the original petitioner John DSouza at Uttan on 22-1-1971, when the summons was alleged to have been served on the original petitioner. 5. The learned trial Judge tried the matter only on affidavits. He accepted the affidavit of the postman on the ground that the same had gone unchallenged rejected the affidavit of the original petitioners daughter as not reliable and ultimately dismissed the petitioners application for setting aside an ex parte decree. 6. Although the original petitioner was required to file an appeal against the said offer, it being appealable order he filed a revisional application against the said order to the Appellate Bench of the Court of Small Causes at Bombay. The Appellate Bench without giving any reasons for the order refused to grant Rule. The said finding is challenged in this application. 7. Admittedly, in this case the trial Court has passed an ex parte decree against the petitioned only on the basis of the return of the summons sent by registered post, with a postal remark refused being treated as a good service. The petitioners application for setting aside the said ex parte decree specifically alleged that the summons was never tried to be served on him. The petitioners application for setting aside the said ex parte decree specifically alleged that the summons was never tried to be served on him. The petitioner had therefore challenged the factum of service of the summons. 8. The Division Bench of this Court in the case of (Sunder Spinner v. Makan Bhule)1, 23 Bom.L.R. 908 has laid down : The service of summons by post is allowed to litigants as a matter of convenience. The Court should allow the defendant a retrial if, after the decree has been passed against him on evidence that the summons was sent be registered post and returned refused, he appears and denies that the packet has ever been delivered to him by the postal authorities. Under similar circumstances in another decision of this Court in the case of (Maeghi Kanji Patel v. Kundjinmal Chamanlal Mehtan)2, A.I.R. 1968 Bom. 387 the Court has observed : Where an ex parte decree is passed after the writ of summons has been sent to a defendant by registered post and the cover containing the summons has been returned with the postal endorsement refused it is undoubtedly for the defendant to satisfy the Court that the letter was not tendered to him. But the defendant can only do so by making a statement on oath. This must usually remain uncontroverted, unless the postman, who tendered the letter to him summoned and makes a statement that he tendered the cover containing the summons to the defendant and after cross-examination, his evidence is believed. If the plaintiff does not summon the postman the statement on oath of the defendant remains uncontroverted and in such a case there is sufficient ground for setting aside the ex parte decree. 9. In this case since the original petitioner has specifically denied having been served with the summons, the learned Judge ought to have on the ratio of the said decision either set aside the ex parte decree or at least taken evidence to find out whether the summons was actually tendered to the original petitioners and refused by him. The learned trial Judge however has not followed the said procedure. Although in fact the respondent had produced at the trial the concerned postman for being examined, the trial Judge only directed the postman to put in his affidavit and allowed to go on his doing so. The learned trial Judge however has not followed the said procedure. Although in fact the respondent had produced at the trial the concerned postman for being examined, the trial Judge only directed the postman to put in his affidavit and allowed to go on his doing so. Apart from his faulty procedure adopted by the trial Judge while dealing with the original petitioners application for setting aside the ex parte decree. The order of the learned Judge in refusing to set aside the decree equally appears to be wrong. 10. Before the learned Judge on behalf of the respondent there was an affidavit of the postman one Purandare, while on behalf of the petitioners there was, apart from the affidavit of the original petitioner, an affidavit of the original petitioners daughter (present petitioner No. 2) and his brother Peter Dsouza. 11. The postman in his affidavit has stated that on 22nd January, 1971 he had tendered the registered packet to the original petitioner whom he knew being from the said village Uttan and the original petitioner who was personally present in the house had refused to accept the same and accordingly he had made an endorsement refused on the packet. He had also stated in the said affidavit that he had attended the Court for giving evidence in pursuance of summons, but he was directed by the Court to file affidavit instead of giving evidence although he was prepared to give, evidence. 12. As against this firstly the petitioners affidavit had in terms denied that he refused the summons when the postman had tendered the same to him at Uttan Village. But apart from his affidavit the original petitioners daughter as well as his brother had subsequently filed affidavits. The daughter has only denied her father being at Uttan on 22-1-1971. However, his brother has in his affidavit in terms stated that on 22-1-1971 the said postman had in fact approached him at the house and enquired of his brother i.e. original petitioner, when he had told him that his brother was at Bombay, that the postman had told him that there was a registered letter in the name of John DSouza the original petitioner, and that he had requested the postman to give the same to him when the post man had said that he cannot deliver it to him. 13. 13. Of these affidavits the trial Judge has specifically rejected the affidavit original petitioners daughter i.e. petitioner No. 2 herein as not reliable. No fault could be found with the said finding of the learned Judge. Evidently the original petitioners daughter making an affidavit about six months after 22-1-1971 when the postman was alleged to have tendered the registered letter to the original petitioner, could not be expected to say only from her memory definitely that her father was not at Uttan on that day when even according to her father used to visit, the village off and on due to his mothers illness. 14. However, the learned Judge has also found that there was no challenge to the postmans affidavit stating that he had in fact, tendered the registered letter to the original petitioner on 22-1-1971. This conclusion of the learned Judge does not appear to be correct. Apart from the fact that the original petitioner had in his affidavit in terms denied having tendered any registered letter on 22-1-1971, his brothers affidavit also had in terms stated that in fact the postman had enquired with him on 22-1-1971 about his brother when he had told the postman that he was at Bombay and that the petitioner had declined to give the same to him. This was in terms a challenge to the postmans case in his affidavit. The learned Judge has in his judgement not only not rejected the original petitioners brothers said affidavit but on the contrary has tried to find support from the said affidavit to the postmans affidavit to the extent that it showed that the postman infact, had gone to the original petitioners house at Uttan Village on that day. In view of the specific denial by the original petitioner and his brother as to the postman having tendered any registered letter to the original petitioner on 22-1-1971 and the original petitioner having refused it, the learned Judge ought not to have decided the matter only on affidavit but should have decided the same after having taken evidence. 15. The Appellate Bench has however without giving any reasons rejected the original petitioners revisional application. There is no material before this Court to find out the reason which prompted them to do so. 15. The Appellate Bench has however without giving any reasons rejected the original petitioners revisional application. There is no material before this Court to find out the reason which prompted them to do so. Since the order by the trial Judge and the Appellate Bench materially affected the valuable rights of the petitioner, the Appellate Court ought to have indicated at least shortly the reasons for its conclusion. 16. In my view therefore, it would be in the interest of justice to remand the matter back to the trial Court to take evidence on the question whether the registered letter containing summons was in fact tendered to the original petitioner on 22-1-1971 and refused by him and in the light of the evidence recorded decide the original petitioners application to set aside the ex parte decree. 17. The result, therefore, is that the petitioners succeed. Rule is made absolute. No order as to costs. 18. Lower Courts orders are set aside. The matter is remanded back to the trial Court for passing orders on the original petitioners application in accordance with law in the light of the observations made in my judgment above. -----