A. K. BISI, J.-, J. ( 1 ) THE instant revision application preferred at the instance of the petitioner/plaintiff is directed against order No. 189 dated 26. 11. 99 passed by Shri N. C. Chakraborty the learned Civil Judge (Senior Division) 1st Court, Alipore in Miscellaneous case No. 29 of 1996. By the impugned order the learned Court below allowed the Miscellaneous case arising out of the application under Order 9 Rule 13 of the Code of Civil Procedure filed by defendant No. 27 presently O. P. No. 1 as applicant for setting aside the ex-parte decree passed on 8. 12. 95 in Title Suit No. 197 of 1985 subject to payment of cost of Rs. 500/- to the O. Ps in the said Miscellaneous case. ( 2 ) THE facts leading to the instant revision may briefly be stated thus. The present petitioner/plaintiff filed Title Suit No. 197 of 1985 in the Court of the learned Assistant District Judge (now designed as Civil Judge Senior Division), 1st Court, Alipore and the suit was decreed in preliminary form on contest with cost against defendant Nos. 18 to 20 and 22 and without cost against defendant No. 21 and ex-parte without cost against the other defendants including defendant No. 27 presently O. P. No. 1 on 13. 8. 91. A Commissioner for partition was appointed and he submitted his report whereupon the suit was decreed finally on 8. 12. 95. Present O. P. No. 1 who was defendant No. 27 filed an application under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure on 16. 5. 96 for setting aside the ex-parte decree and the same was registered a Miscellaneous case No. 29 of 1996. In the said application it was alleged by present O. P. No. 1 who was the applicant in the said Miscellaneous case that on 13. 5. 96 he went to the suit property at Hridaypur and came to learn that some persons went to the suit property for the purpose of investigation. He suspected that some clandestine operation was going on with regard to the suit property at the instance of the plaintiff. On 15. 5. 96 he came to learn about the suit being Title Suit No. 197 of 1985 and also about Title Suit Execution case No. 4 of 1996. He suspected that some clandestine operation was going on with regard to the suit property at the instance of the plaintiff. On 15. 5. 96 he came to learn about the suit being Title Suit No. 197 of 1985 and also about Title Suit Execution case No. 4 of 1996. It was further averred by the present O. P. No. 1 in the said application that no summon was served on him and his address as given in the plaint was Haridhaypur, Hridaypur Station (West), P. O. Hridaypur P. S. Barasat. The specific averment made by him is that he has been residing at 10, Rajen Banerjee Road, P. S. Behala, Calcutta-34 for more than 20 years and this is his real address. Further case of the present O. P. No. 1 as made out in the said application is that the plaintiff gave his wrong address and suppressed the service of summons upon him by practising fraud as a result of which he never had any knowledge about the said suit. He came to know about the said suit on 15. 5. 96 after making enquiry through the advocate concerned and if he would have been served with any summons or notice or if he would have knowledge of the above aforesaid suit he could have appeared in the suit for contesting the same. Under the above circumstances the present O. P. No. 1 who was the applicant in the said Miscellaneous case alleged that he was prevented by sufficient cause from appearing at the time of hearing of the suit as no summons was served on him and he suffered serious loss and injury because of the ex-parte decree passed against him and as such he filed the said application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree which was passed finally on 8. 12. 95 including the preliminary decree passed in the said suit. ( 3 ) THE present petitioner/plaintiff who was O. P. No. 1 in the said Miscellaneous case contested the same by filing the written objection to the application under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure and denied the material allegations contained in the said application. As per his case there was no reason to file the said application. As per his case there was no reason to file the said application. It was averred by him inter alia in the written objection that the defendant No. 27 used to reside and stay in the suit property and for that reason notices and summons in Title Suit No. 197 of 1985 were sent to him in the said address. It was further averred that defendant No. 27 was always aware of the existence of Title Suit No. 197 of 1985 since its institution and that the said application was filed by defendant No. 27 suppressing the material fact of due service of notices and summons intentionally only to harass the plaintiff. ( 4 ) THE learned Court below on consideration of the materials on record came to the finding that the summons was not served upon defendant No. 27 and inspite of that the ex-parte decree was passed against him. The learned Court below further held that the petitioner would suffer irreparable loss and injury if the ex-parte decree was not set aside. Consequently the learned Court below allowed he Miscellaneous case subject to payment of cost of Rs. 500/- to the O. Ps in the Miscellaneous case set aside the ex-parte decree passed on 8. 12. 95 accordingly. ( 5 ) BEING aggrieved by the impugned order passed by the learned Court below the petitioner/plaintiff has preferred the instant revision application alleging inter alia that the impugned order suffers from the vice of manifest injustice inasmuch as just after the preliminary decree was made final on deposit of Rs. 39,180/- the application had been filed on a malafide manner, that the learned Court below exercised its jurisdiction illegally and with material irregularity by restoring the whole suit to file and by setting aside the final decree dated 8. 12. 95, that the learned Court below exercised its jurisdiction illegally and with material irregularity in not holding that mere non-service of summons (even assuming but not admitting non-service) will not vitiate the proceeding unless defendant No. 27 proves that there has been fraudulent suppression of summons by the plaintiff and the claim of the plaintiff in the suit is false and that the judgment suffers from the vice of non-consideration of the evidence of present applicant to the elect that there has been due service of summons and that the impugned judgment is perverse. ( 6 ) O. P. No. 1/defendant No. 27 has contested the instant revision application justifying the impugned order passed by the learned Court below: ( 7 ) THE sole question to be decided in the instant revision application is whether or not the learned Court below was justified in allowing the Miscellaneous case and setting aside the ex-parte decree passed on 8. 12. 95 in T. S. No. 197 of 1985 on the face of the materials on record. ( 8 ) THE main allegation of present O. P. No. 1/defendant No. 27 is that he has been residing at 10, Rajen Banerjee Road, P. S. Behala, Calcutta-34 for more than 20 years whereas his address given in the plaint was Hariharpur, P. O. Hridaypur, P. S. Barasat, District- 24-Parganas. It is contended by the learned advocate appearing for present O. P. No. 1/defendant No. 27 that his client never resided in the said address given in the plaint and no summons was served upon him in his actual residential address, which as stated earlier, is 10, Rajen Banerjee Road, P. S. Behala, Calcutta-34. He has drawn my attention to the rent receipt, marked Exhibits-1 and 1 (a), the M. O. receipt showing payment of rent (Exhibit 2), the electric bills marked exhibits-3 and 3 (a) and the other documents marked exhibits-5 and 5 to substantiate the factum of residence of present O. P. No. 1/defendant No. 27 at 10, Rajen Banerjee Road, Behala. ( 9 ) THE learned advocate for the present petitioner/plaintiff on the other hand has contended that a person can have residence in more than one place and occupation of the aforesaid rented house at Behala by present O. P. No. 1 does not exclude possibility of his residence in any other place. Furthermore he has submitted that present O. P. No. 1/defendant No. 27 claims to have acquired interest in portion of the suit property from defendant No. 1 presently O. P. No. 2 and his co-sharers who did not come to contest the suit. It has been further submitted by the learned advocate for the present petitioner/plaintiff that the present O. P. No. 1/defendant No. 27 filed the application under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure suppressing the material fact of proper service of summons intentionally in order to harass the petitioner/plaintiff. It has been further submitted by the learned advocate for the present petitioner/plaintiff that the present O. P. No. 1/defendant No. 27 filed the application under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure suppressing the material fact of proper service of summons intentionally in order to harass the petitioner/plaintiff. As contended by him, defendant No. 27 was all along aware of the suit through summons and notices and he had also full knowledge of the suit through his alleged vendors and also through defendant No. 25 Nemai Das who was his agent and caretaker and duly served with summons. ( 10 ) FROM the materials on record I find that the process server concerned who was examined as O. P. W. 2 went to server summons on defendant No. 27 in the address given in the plaint. It is gathered from his evidence that the defendant No. 27 refused to accept the summons and the notice of injunction. The respective reports of the process server concerned with regard to service of summons and notice of injunction upon the defendants including defendant No. 27 presently O. P. No. 1 were marked exhibits-A and B. It further appears from the materials on record that there was simultaneous service of summons upon defendant No. 27 presently O. P. No. 1 by registered post. The learned advocate for the petitioner/plaintiff has drawn my attention to the order dated 10. 3. 86 passed by the learned Court below in the title suit wherefrom it appears that the summons sent by registered post upon defendant No. 27 was returned undelivered as per postal endorsement 'not claimed' and the learned Court below treated the same as good service. 3. 86 passed by the learned Court below in the title suit wherefrom it appears that the summons sent by registered post upon defendant No. 27 was returned undelivered as per postal endorsement 'not claimed' and the learned Court below treated the same as good service. It is submitted by the learned advocate for the present petitioner that in the course of evidence of his witnesses before the learned Court below the present petitioner who was O. P. No. 1 in the said Miscellaneous case filed a petition for production of the tin box where the covered envelope of defendant No. 27 which was returned with the postal endorsement 'not claimed' was kept along with other envelopes but the said tin box could not be traced at that time and due to non-production of the said tin box the covered envelope with the postal endorsement 'not claimed' could not be shown to the postal peon who was examined as O. P. W. 3 as a result of which the said covered envelope addressed to defendant No. 27 presently O. P. No. 1 which was sent by registered post and returned with the postal endorsement 'not claimed could not be marked exhibit. However, the said tin box containing the aforesaid envelope with the postal endorsement 'not claimed' along with other envelopes had been forwarded along with the case record by the learned Court below to this Court when the case record were called for. ( 11 ) AS already referred to, by the order dated 10. 3. 86 passed in the title suit the learned Court below accepted the service of summons which was sent by registered post to defendant No. 27 and returned with the postal endorsement 'not claimed' as good service. ( 12 ) IN Sachindra Nath Seal v. Sudam Chandra Pal and Another, AIR 1978 Calcutta 202 at page 205 at page (para 7) The Division Bench of this Court held as follows:the words 'not claimed' imply that there was no person by the name of the addressee and so the letter was not claimed by the inmates of the house. If that had been the circumstance, the peon would not call at the suit premises on the second day for the second time. The words 'mis-sent' as endorsed on the envelope on December 4, 1968 is significant. If that had been the circumstance, the peon would not call at the suit premises on the second day for the second time. The words 'mis-sent' as endorsed on the envelope on December 4, 1968 is significant. It seems to us that by that endorsement it was meant that there was no necessary for the postal peon to call at the suit premises on the second day when it was not claimed on the first day. Considering the first endorsement, we are of the view that the letter was refused giving rise to the presumption of due service. The view which we take finds support from a Bench decision of this Court in Satya Charone Roquitter v. Suresh Chandra Pal, (1961) 65 Cal WN 1239. It has been observed by P. N. Mookherji, J. who delivered the judgment of the Bench that 'not claimed' may amount to refusal, in which case it would be good service according to law; but it may also be that nobody was found at the relevant address to claim the letter which may be consistent with the defendant's case that the defendant was away or absent from the place and there was nobody there who could accept the letter on is behalf. ? ( 13 ) UNFORTUNATELY in the instant case I find that the covered envelope containing the summons addressed to defendant No. 27 which was sent by registered post and returned with the endorsement 'not claimed' could not be produced before the learned Court below for which the same could not be proved by the postal peon concerned and as such the learned Court below had no occasion to go through the postal endorsement 'not claimed' on the said envelope and judge the matter in proper perspective in the light of the decision in the case of Sachindra nath Seal (supra ). Since the said envelope kept in the tin box has subsequently been traced and forwarded to this Court, opportunity should be given to the petitioner/plaintiff to get the same proved by the postal peon concerned or any other competent witness in case the postal peon concerned is no available for the purpose of marking the same as exhibit whereupon opportunity should be given as well to defendant No. 27 presently O. P. No. 1 to adduce evidence in rebuttal on this score. ( 14 ) THE learned advocate for present O. P. No. 1/defendant No. 27 has trenuously argued on the point of non-service of summons upon defendant No. 27 in his residential address where he has been living. The learned advocate for the present petitioner/plaintiff on the other hand has contended that a person on whom the summons is required to be served may have more than one place of residence and the Court can direct the summons to be served by registered post, acknowledgment due, addressed to the defendant or his agent empowered to accept the service, at the place where such person being the defendant, or his agent, actually and voluntarily resides or carries on business or presently works for gain. He was drawn my pointed attention to Order 5 Rule 19a (1) of the Code of Civil Procedure in this regard. ( 15 ) SINCE I am of the view that opportunity should be afforded to the plaintiff to get the envelope addressed to defendant No. 27 which was sent by registered post and returned with the postal endorsement 'not claimed' proved by the competent witness and marked exhibit, the matter relating to implication of the postal endorsement 'not claimed' on that particular envelope should be left open to the learned Court below for proper adjudication in the light of the aforesaid decision of the Division Bench of this Court and the relevant provisions of law. ( 16 ) THE learned Court below had discarded the report of the process server concerned examined as O. P. W. 2 observing that no specific address of defendant No. 27 was given in the summons. But on perusal of the service return of summons which is marked exhibit-A I find that the address of defendant No. 27 along with the other defendants named in the summons was given as vill-Hariharpur, Hridaypur Station (West), P. S.- Barasat, P. O.- Hridaypur. It further appears that the process server concerned obtained signatures of two witnesses living in the locality. In my view both the reports of the process server concerned (exhibit-A) and the postal endorsement 'not claimed' appearing on the returned envelope addressed to defendant No. 27 are to be properly looked into for the purpose of ascertaining whether there was proper service of summons upon defendant No. 27. In my view both the reports of the process server concerned (exhibit-A) and the postal endorsement 'not claimed' appearing on the returned envelope addressed to defendant No. 27 are to be properly looked into for the purpose of ascertaining whether there was proper service of summons upon defendant No. 27. ( 17 ) THE second proviso to Order 9 Rule 13 of the Code of Civil Procedure which was added by the Amendment Act, 1976 lays down that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. So another vital factor which is required to be considered by the learned Court below is whether or not defendant No. 27 had notice of the date of hearing of the suit and had sufficient time to appear and answer the plaintiff's claim. It has escaped the notice of the learned Court below at the time of deciding the Miscellaneous case. ( 18 ) FOR the foregoing reasons I hold that the impugned order suffers from material irregularity and in the interests of justice the same is liable to be set aside and the Miscellaneous case should be sent back to the learned Court below with direction to give opportunity to the plaintiff to get the envelope containing the summons addressed to defendant No. 27 which was sent by registered post and returned with the postal endorsement 'not claimed' proved by the competent witness and marked exhibit and in such case opportunity should be given to defendant No. 27 to adduce evidence in rebuttal on this score. Then after giving opportunity of hearing to both the parties the learned Court below will decide the Miscellaneous case afresh on the basis of the evidence on record in its totality and come to specific finding whether or not there was proper service of summons upon defendant No. 27 and whether or not the defendant No. 27 had prior knowledge of the suit and dispose of the Miscellaneous case in accordance with law. ( 19 ) IN view of my above observations I refrain from making any finding on the merits of the Miscellaneous case although the learned advocates for the parties have elaborately argued on the merits of the case. Since I am inclined to send back the Miscellaneous case to the learned Court below for rehearing and taking fresh decision in the light of my above observations it will not be desirable on my part to make any finding which may prejudge the points involved in the Miscellaneous case and affect its merits. ( 20 ) THE instant revision application is accordingly allowed. The impugned order being Order No. 189 dated 26. 11. 99 passed by Shri N. C. Chakraborty the learned Civil Judge (Senior Division) 1st Court, Alipore in Miscellaneous case No. 29 of 1996 is set aside. The Miscellaneous case be sent back to the learned Court below for rehearing. The learned Court below will give opportunity to the plaintiff to get the envelope containing the summons addressed to defendant No. 27 which was sent by registered post and returned with the postal endorsement 'not claimed' proved by the competent witness and marked exhibit and also give opportunity to defendant No. 27 to adduce evidence in rebuttal on this score. Then after giving opportunity of hearing to the parties the learned Court below will decide the Miscellaneous case afresh on the basis of the evidence on record in its totality and come to specific finding whether or not there was proper service of summons upon defendant No. 27 and whether or not the defendant No. 27 had prior knowledge of the suit and dispose of the Miscellaneous case in accordance with law within three months from the date of communication of this order. It is made clear that I have not gone into the merits of the disputes between the parties and all questions relating thereto will be left open to the learned Court below for proper adjudication. It is also made clear that the learned Court below will decide the Miscellaneous case afresh on the basis of the evidence on record untrammeled by the previous findings made in the Miscellaneous case or by any observation made by this Court. There will be no order as to costs. It is also made clear that the learned Court below will decide the Miscellaneous case afresh on the basis of the evidence on record untrammeled by the previous findings made in the Miscellaneous case or by any observation made by this Court. There will be no order as to costs. Let copy of this order and the lower Court records along with tin box containing the documents received by this Court be sent down to the learned Court below forthwith. Xerox certified copy of this order, if applied for, be given to the parties after observing the required formalities as expeditiously as possible. Application allowed