JUDGMENT Nathoo Singh, J. - This second appeal converted into revision by an order dated 19-6-1990 has been preferred against the order dated 24-5-1990 passed by the Commissioner, Kumaun Division, Nainital while deciding appeal No. 186 of 1988-89 preferred against the order dated 13-9-1989 passed by the Sub-Divisional Officer Rudrapur district Nainital in suit No. 22/15 of 1988-89 under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, to be called the "Act" hereinafter. 2. At the admission stage a caveat has been filed on behalf of the respondent mainly on the ground that no second appeal lies unless the case has been finally disposed off but since on the request of the appellant himself the second appeal has already been converted into revision the objection raised has become irrelevant. 3. I have heard the learned counsels for the parties and have perused the papers available before him. 4. The learned counsel for the revisionist while pressing his case for admission of the revision has further gone to argue that this revision is against the judgement and decree dated 26-4-1989 passed by the trial court disposing of the suit ex parte against the revisionist and restoration application filed was also rejected. Then the aggrieved revisionist came before the Commissioner to seek remedy but the learned Commissioner also refused to give relief and dismissed the revision which has a given rise to the present revision in this court. The learned counsel for the revisionist pointed out about the facts clear from the judgements of the two courts below which are available and has contended that the learned trial court himself admitted in his judgement that the suit proceeded ex parte against defendant No. 1 as he did not appear in the court on 19-9-1989. It appears that a partition suit was brought by opposite-party Smt. Gurbir Kaur, wife of Narain Singh resident of village Fazalpur Mahrola, Tehsil Kichcha district Nainital impleading the revisionist Sewa Singh and two others including the Gaon Sabha as defendants and defendant No. 1 Sewa Singh, revisionist could not appear in the court and the suit proceeded ex parte against him on 19-1-1989 and ex parte judgement and decree was passed on 26-4-1989. A restoration application afterwards moved by the revisionist Sewa Singh was also rejected under the orders of the trial court dated 13-9-1989 and first appeal No. 186 of 1988-89 preferred before the Commissioner Kumaun Division, Nainital was also dismissed on 24-5-1990. From the perusal of papers it is definitely clear that defendant-revisionist Sewa Singh could not appear in the court and it was pleaded on his behalf that no summon was served on him which was admitted by the trial court in the order sheet dated 18-12-1988 when directions for sending registered summons were given but the address noted in the summons was not correct and on 19-1-1989 the next date fixed for hearing, the learned trial court ordered for proceeding ex parte against the revisionist-defendant. Both the courts below have refused to entertain the restoration matter saying that revisionist-defendant did have knowledge of the Proceedings and not appeared and his knowledge is said to have been proved from a vakalatnama allegedly filed by Sri Dinesh Kumar Suyal Advocate although the defendant-revisionist had denied to have any knowledge or to have put in appearance through any counsel. The learned Commissioner has also observed that there is some Mukhtarnama filed by some Amrik Singh disclosing himself to be the Mukhtare-Aam of defendant-revisionist. The learned counsel for the revisionist has relying upon RD 1982 page 189 and AIR 1987 page 1304 (SC) has vehemently argued that it is a well established and well settled principle of law that parties must be given justice and in the interest of justice to be imparted in the case under dispute, the disputes must be decided on merits and should not be disposed of on mere technicalities even if of law as the courts have got unfettered powers in this regard to condone delays and to restore the ex parte judgements and orders if it is proved that the person seeking relief of restoration did not have knowledge of the proceedings and trial of the suit and no summons were actually served on him or can be deemed to have been served on him and even service by affixation and by publication in the Gazette or in any vernacular papers are to be ignored while restoring the case in exercise of the discretionary powers of the court in the interest of justice. In the present case under consideration, it appears clearly that on 28-12-1988 the learned trial court itself admitted that summons were not served on revisionist-defendant and directed for sending registered summons and fixed 19-1-1989 but without waiting for the return of acknowledgement etc. at least for thirty days he ordered for proceeding ex parte on 19-1-1989 and passed ex parte order-judgement and decree. It further a matter of great injustice to the revisionist that his restoration application was also not entertained. The facts of service of summons and of knowledge of the proceedings cannot be decided by presumptions and any prima facie evidence in support of it, is always rebuttable if the facts are denied by the defendant on appearance because in many cases such evidences may be the manipulations and fabrications by the plaintiff itself in order to obtain ex parte decree by playing fraud upon the court. Thus mere assertions of certain facts and any evidence in their support to show knowledge cannot be considered to be enough to justify orders, judgement and decree passed ex parte and it is necessary in the interest of justice to give time to the defendant to rebut such evidence and their, after thorough enquiry any conclusion can be drawn. In the present case neither any enquiry has been conducted as to whether the vakalatnatna available on the record was actually filed on behalf of the revisionist defendant himself and whether any Mukhtar-Aam was appointed by him to represent his case in suit under consideration. 5. Since the matter relates simply to restoration only, hence keeping in view the well settled law that justice delayed is justice denied. I am inclined to dispose of this revision finally at this stage so that justice may not be delayed and the suit may be disposed of as early as possible by the trial court. The orders passed by the learned trial court dated 26-4-1989 and dated 13-9-1989 as well as the order passed by the learned Commissioner Kumaun Division, Nainital dated 24-5-1990 are set aside In the interest of justice for decision of suit on merits and the revision is disposed off accordingly. Parties to the contest shall maintain status quo meanwhile.