Shailendra Kumar v. Damoder Singh — 1991 DIGILAW 964 (ALL)

JUDGMENT S.K. Lakhtakia, M. - This is a reference made by Additional Commissioner, Agra Division, Agra dated 3.8.87 whereby he has recommended that the order of the Sub-Divisional Officer Mat, district Mathura dated 6.2.87 rejecting the application for restoration of the defendant-revisionist be set aside and the case be restored by setting aside the ex-parte decree passed on 7.9.82. 2. Briefly stated, the facts of this case are that a suit under Section 229-B of U.P. Act No. 1 of the 1951 was bought by Brajbhan Singh father of opposite parties No. 1 to 4 which was decreed ex-parte on 7.9.82. On 12.10.84 an application for restoration under order 9 rule 13 of Civil Procedure Code was moved by the revisionist Shailendra Kumar and Shish Kumar on the ground that their father Baj Kumar who was the original defendant had no information of the suit and that no notice had been served personally upon him and that they too had no knowledge about the suit or decree earlier hence on learning about the same they applied for restoration along with application under Section 5 Limitation Act for condonation of delay. 3. The trial court held that notices had been sent by registered post to the defendant Raj Kumar and it had been returned with the endorsement of refusal by the addressee hence service was sufficient and accordingly the application for restoration was rejected. 4. On revision the learned Additional Commissioner came to the conclusion that personal service on the defendant had not been proved hence it is a fit case where the suit should be restored and the ex-parte decree be set aside and the case be contested on merits. Accordingly he has made this reference to this court with the aforesaid recommendation. 5. Heard the learned counsel for both the parties. Perused the record. 6. Accordingly he has made this reference to this court with the aforesaid recommendation. 5. Heard the learned counsel for both the parties. Perused the record. 6. Learned counsel for the revisionist argued that the land in dispute is situated in village Mat Moola Banger, district Mathura and the address of the defendant in the khatauni is mentioned as resident of the village which follows that the residence of Raj Kumar according to khatauni is village Mat Moola Banger but in the plaint this address was not given and instead the address of village Barsey, Tahsil Hathras, post office Sashni, district Aligarh was mentioned, hence this address being against that mentioned in the Khatauni cannot be taken to be the ordinary place of residence of the defendant. It was also alleged that the summons to the defendant should have been sent in accordance with the address mentioned in the Khatauni and if it had not been served upon him on that address and a different address had been provided by the process server then fresh summons could have been sent on the new address. However the summons sent on the address given in the plaint was not issued at all because there is no report of the process thereon. Then a registered summon at the address of village Barsey Tahsil Hathras, Post Office Sashni district Aligarh seems to have been sent but it was not served upon the defendant and the postman endorsed the report of refusal which report is wrong and cannot be accepted as true because the post man was not examined in the court. It was further argued that the address mentioned in the envelope as well as in the plaint both are incorrect because village Barsey is situated in the circle of Post Office Kanya Gurukul, district Mathura and not in district Aligarh and so the address mentioned by the plaintiff on the envelope was wrong and so no presumption of correctness can be attached to the report of the postman. It was, therefore, submitted that the recommendation made by the Additional Commissioner is correct and the ex-parte decree deserves to be set aside. In support of this contention ruling reported in AIR 1979 Allahabad page 386 was relied upon in which the report of the post man was not accepted by the court because the postman was not called and examined. 7. In support of this contention ruling reported in AIR 1979 Allahabad page 386 was relied upon in which the report of the post man was not accepted by the court because the postman was not called and examined. 7. Learned counsel for the opposite party argued that presumption of correctness is attached to the endorsement made by the post man and, therefore, it would be deemed that this envelope did reach the addressee and he had refused to receive it. Reliance was placed on AIR 1989 (S.C.) page 630 and AIR 1991 (S.C.) page 1215 in Rent Cases. 8. From a perusal of the khatauni and the plaint it is abundantly clear that the address mentioned in the plaint is different from that of the khatauni and according to the postal report the address mentioned in the plaint and on' the envelope both are incorrect because village Barsey lies in district Mathura and not in District Aligarh yet summons and the envelope both were sent at the address of district Aligarh. This attempt on the part of the plaintiff goes to show that he was hiding the correct address of the defendant in order to secure a substituted service stealthily in order to get the suit decreed ex-parte. In such a case it was the bounden duty, of the plaintiff to have examined the post man to prove his endorsement of refusal so that it could be ascertained, that he had really met the addressee. The revisionists have filed an affidavit to the effect that no registered envelope was over delivered by the post man to their father, hence there is no reason to disbelieve them unless the post man had been examined. The rulings relied upon by the learned counsel for the opposite party no doubt lay down that presumption of correctness shall be attached to the report of the postal department nevertheless they do not say that this report is not rebuttable. On the other hand the ruling relied upon by the learned counsel for the revisionist clearly lays down that the post man must be called to prove his report failing which no presumption of correctness would be attached to his endorsement. On the other hand the ruling relied upon by the learned counsel for the revisionist clearly lays down that the post man must be called to prove his report failing which no presumption of correctness would be attached to his endorsement. In such circumstances when the addresses given on the envelope and in the plaint are incorrect and the post man was not called in evidence, there is no reason to disbelieve the case of the revisionist that their father had no information of the suit nor the revisionist had any knowledge thereof, hence the recommendation made by the learned Additional Commissioner is perfectly sound and must be accepted. 9. Accordingly the reference is accepted and the revision is allowed. The impugned order passed by the trial court dated 6.2.87 as well as the ex-parte decree dated 7.9.82 are set aside and the suit is restored. Let the record be sent back to the trial court to decide the case on merits according to law expeditiously.