ORAL JUDGMENT :- Respondent No.1 herein filed Regular Civil Suit No. 609 of 1990 in which the petitioner herein was arrayed as defendant No.1 and respondent Nos. 2 to 4 herein were defendant Nos. 2 to 4. 2. According to the plaintiff, he had purchased suit plot admeasuring 3310 sq. ft., having dimensions 164' x 167' on 29th October, 1985, from defendant No. 2 under registered sale-deed for a consideration of Rs. 19,000/-. Boundaries of the plot need not be referred to. According to the plaintiff, from the date of sale-deed, he was enjoying the property as owner thereof. In the meantime, when he was out of town, as he was transferred to Chikhali. Taking advantage of plaintiff s absence, the defendant No.1 has encroached upon the suit plot with the help of defendant No.4, and raised a construction thereon. As per the plaint map, the area encroached, according to plaintiff, is 996 sq.ft. 3. Prior to present Regular Civil Suit No. 609 of 1990, the plaintiff had filed a Regular Civil Suit No. 369 of 1989, when, according to him, the defendant No.1 was in the process of encroaching, and sought injunction against him. In the said suit, a Court Commissioner was appointed and the construction in the form of encroachment made by the defendant No.1 came on record. Plaintiff also came to know that the defendant No. 1 was relying upon a sale-deed executed by defendant No. 4 in her favour. He has thereafter withdrawn the Regular Civil Suit No. 369 of 1989, which was filed by him for injunction, and filed a fresh suit claiming possession of suit land, damages and mandatory injunction. 4. In the subsequent Regular Civil Suit No. 609 of 1990, the defendant Nos. 1 and 4 had failed to file Written Statement, though they had appeared in the suit and applied for time to file the Written Statement. Defendant No.2 supported title of plaintiff, and denied that in view of the fact that she has ceased to have any ownership rights, she had no concern with the claim. Defendant No. 3 denied plaintiff's claim. 5. The suit proceeded ex parte and without Written Statement against the defendant No.1. Trial Court found that from the evidence led by the plaintiff, the suit claim was proved and hence decreed the suit. Defendant No. 3 denied plaintiff's claim. 5. The suit proceeded ex parte and without Written Statement against the defendant No.1. Trial Court found that from the evidence led by the plaintiff, the suit claim was proved and hence decreed the suit. Trial Court observed that the defendant had appeared in suit on service of summons and failed to file the Written Statement. The suit was decreed on 17th September, 1991. 6. Successful plaintiff filed Execution Petition on 6th January, 1992 and request for issuance of a warrant for delivery of possession. This prayer was allowed by Order below Exh.8 and the bailiff proceeded to execute warrant. Present petitioner obstructed the delivery of possession and the Judgment debtor - petitioner herein - thereafter filed an application for setting aside ex parte decree. Her application for setting aside ex parte decree was registered as Misc. Judicial Case No. 106 of 1999. 7. Petitioner averred in her application that she has purchased the suit property by registered sale-deed dated 10th March, 1989 from defendant No.4 for a valuable consideration of Rs. 8,0001-, got her name recorded, spent an amount of Rs. 2,00,000-00 for construction of a house thereon, got electricity connection, is occupying the house and is paying the Municipal taxes etc. As to suit in which decree was passed, the petitioner averred that till 21-71993 she was having no knowledge about the filing of any suit against her, because no notice of the said suit was served on her at any point of time. That after 21-7-1993, the inspection of the record of said suit was taken by her Advocate and at that time, it had revealed from the record that the suit summons was also not served on the defendants. According to the petitioner, the plaintiff filed suit against this petitioner in collusion with other defendants and therefore the other defendants appeared in the suit suo motu without service of any summons, as the plaintiff had decided to obtain ex parte decree against this defendant No.1 - present petitioner. She further represented that the defendant No. 4 brought the applicant in the Court near Railway Station, Akola, and he took signatures of the applicant on one application. She further represented that the defendant No. 4 brought the applicant in the Court near Railway Station, Akola, and he took signatures of the applicant on one application. However, the petitioner was not knowing what was written in the application and the defendant No.4 told that, the petitioner has nothing to do with the fact that the entry of the mutation will be effected in her name in due time, and therefore, the applicant signed the said application. After about 2Y2 years from the said incident, the applicant from the Court person received one notice with whom the defendant No. 4 and one another person was accompanying, they gave a notice to applicant and thereafter, the defendant No.4 told her that this is the witness summons and the applicant will have to go to the Court for signing one application on the date written on the said letter and further he said that he will accompany the applicant and will bring back the applicant from the Court. Accordingly, in the month of April, 1992, the defendant No.4 brought the applicant in the Court and got written one application from the person sitting in the Court and her signature was taken on the said application and the defendant No.4 told the applicant that now she will not require to come in the Court and her name will be mutated in due course. However, surprisingly on 21-7-1993, the plaintiff had been to the house of petitioner along with bailiff, police aid and other persons and they tried to execute the warrant and also thrown some of the household articles on the road and threatened the applicant. 8. Therefore, the petitioner herein came to know through her Advocate who took inspection about the suit filed by the plaintiff and about her having applied for time to file Written Statement and to engage lawyer. Petitioner then filed application for setting aside ex parte decree in which original plaintiff and other respondents were arrayed as respondents. It is pertinent to note that the allegations in the application under Order IX, Rule 13, Civil Procedure Code, were mainly against original plaintiff and the defendant No.4. The crucial averments contained in her application was about her being illiterate and defendant No.4 having brought her to Akola and obtained signature etc. on two occasions upon certain misrepresentation. 9. It is pertinent to note that the allegations in the application under Order IX, Rule 13, Civil Procedure Code, were mainly against original plaintiff and the defendant No.4. The crucial averments contained in her application was about her being illiterate and defendant No.4 having brought her to Akola and obtained signature etc. on two occasions upon certain misrepresentation. 9. Plaintiff, present respondent No. I, filed the reply to application for setting aside ex parte decree at Exh.9. The non-applicant, who was original plaintiff, as well the defendant Nos. 2, 3 and 4 filed replies at Exh.24, Exh.28 and Exh.31 respectively. The plaintiff as well as the defendant No. 4 have denied the allegations made by the petitioner against them. The tenor of denial by the respondent No. 1 can be appreciated better by referring to denial by the plaintiff in his reply Exh.9, which is quoted ad verbatim as follows :- "3 ..... It is denied that till 21-7-1993 the applicant was having no knowledge about the filing of suit against her. It is denied that no notices of suit were served on applicant. In this regard the position is made clear in further pleas. It is denied that it is after 21-2-1993 on inspection by the Advocate the applicant came to know that the notices were not served on N.As. It is again denied that the said suit was filed in collusion with N.A. Nos. 2 to 4…..” " ..... It is denied that before 2-3 years the N.A. No.4 had been to house of applicant and informed the applicant that for mutation purpose of plot her signatures are required in the Court. It is denied that N.A. No.4 had brought the applicant in the Court. It is denied that the N.A. No. 4 had taken her signatures. It is denied that the applicant was not knowing what was written in the application. The story of signing such application is concocted one. It is denied that before about a year the N.A. No.4 and some other person had come to the applicant. It is denied that N.A. No.4 told her this is a witness summons. It is denied that it was told that she required to go to Court for signing one application. It is denied that in the month of April, 1992 the N.A. No.4 brought the applicant in the Court. It is denied that N.A. No.4 told her this is a witness summons. It is denied that it was told that she required to go to Court for signing one application. It is denied that in the month of April, 1992 the N.A. No.4 brought the applicant in the Court. It is denied that the N.A. No. 4 got written the application from the person sitting in the Court. It is denied that the N.A. No. 4 told to applicant that she need not come to the Court. It is denied that on 21-71993 surprisingly N.A. No.4 had been to house of applicant along with bailiff and police aid. In fact, on 21-7-1993 the warrant was executed. It is denied that it is thereafter the applicant came to know about the proceedings filed by the N.A. No.4." (quoted from pages 19 and 20 of Exh.9 from File 'A' of Misc. Judicial Case No. 106 of 1993). On the other hand, the defendant No.4 averred in para No.5 of Exh.31 as follows :- "3 ..... At her own instance, this N.A. has helped her from time to time in earlier suit filed by the N.A. No.1 against this applicant. She avoided to remain present. She was well aware of the proceeding. However, only to avoid the execution of decree, she has made false allegations against this Non-applicant. As such, the application filed by applicant deserves to be dismissed with costs. Hence this reply." (quoted from page 29 of Exh.31 from File 'A' of Misc. Judicial Case No. 106 of 1993). 10. It is pertinent to note that during pendency of the said application for setting aside ex parte decree, the execution of decree was stayed. This had become necessary in the background that bailiff had given a report that the construction on the spot was demolished and open plot was given in possession and that the decree was satisfied which report was found to be false in the process of hearing of application for stay. 11. It is seen that issues were not framed and Trial Court proceeded to record evidence. 12. Petitioner examined herself as a sole witness, and relied upon the record of the suit as regards the evidence relating to fact of non-service of summons on her. 13. 11. It is seen that issues were not framed and Trial Court proceeded to record evidence. 12. Petitioner examined herself as a sole witness, and relied upon the record of the suit as regards the evidence relating to fact of non-service of summons on her. 13. Respondent No.1, on the other hand, examined himself and Process Server, Panch witness who had signed as witness of service of notice under Order 21, Rule 22, Civil Procedure Code on 27th March, 1992 as per Exh.6 in Regular Darkhast No.4 of 1992 for proof thereof. The plaintiff did not apply for issue of summons as well himself failed to bring and examine other witnesses to prove service of summons in Regular Civil Suit No. 609 of 1990. 14. The learned Trial Judge, after hearing oral submissions, delivered the Judgment and dismissed the petitioner's application for setting aside ex parte decree, finding it to be devoid of any substance. Petitioner carried an appeal from Order, which came to be rejected. Petitioner is, therefore, before this Court in this Revision Application. 15. Heard learned Advocate Mr. Z. A. Haq in support of the petitioner and learned Advocate Mr. Laddhad for Mr. Sagar Patil for the contesting respondent, the original plaintiff. 16. Submissions of learned Advocate Mr. Haq can be summarized as follows :- (i) Record shows that summons to the defendants were not prepared, not signed and issued. Had those been issued, the Roznama of the Civil Suit would have shown that summons were prepared and issued, and there would have been exhibit marks thereto. Further, summons ought to have been on record after due service thereof. In the event plaintiff could show that the defendants appeared suo motu, the original summons would have been shown to be prepared and delivered for service. All this record is absent in the case. (ii) The story of plaintiff is of issue of summons and service thereof for which there is no evidence on record. (iii) Reliance of the plaintiff in the alternative is on the application (Exh.11), in which defendant No. 1 has admitted that she has received the summons. However, this admission pertains to existence of a document of which primary evidence is to be brought by inspection of the document. The very existence of document is not shown. This admission of the defendant No. 1 is, therefore, of no consequence. However, this admission pertains to existence of a document of which primary evidence is to be brought by inspection of the document. The very existence of document is not shown. This admission of the defendant No. 1 is, therefore, of no consequence. (iv) The defendant No. 1 pleaded that it is at the behest and at the representations which are seen to be misrepresentations, she was taken to the Court and her signatures were obtained on two occasions, namely when she filed application (Exh.11) and when she filed application for adjournment in response to notice under Rule 22 of Order 21 of Civil Procedure Code. Involvement of defendant No.4 is categorically and unimpeacheably averred and deposed by the defendant No.1 in her application for setting aside ex parte decree as well as in her deposition. This involvement of defendant No.4 done by the defendant No.1 is denied in the reply to application under Order IX, Rule 13, Civil Procedure Code, by the plaintiff; however, he has failed in bringing on record this denial by way of cross-examination of defendant No.1, by way of his own evidence, by way of evidence of defendant No. 4 and by way of some other evidence by which defendant No.4 admitted his involvement in appearance of the defendant in Court by way of admission contained in Para No.5 of Exh.31 in M.J.C. No. 106 of 1993, could have been explained and denied. All above factors go to show that the allegations contained in the application under Rule 13 of Order 9 have gone wholly unchallenged. The particular fact is duly proved. Other ambiguous material in the evidence of the defendant No. 1 in support of her application for setting aside ex parte order does not deteriorate her testimony in view that she is a rustic woman and her worthiness of trust is sought to be impeached peripherally, however, crux of the matter has gone unimpeached. 17. Learned Advocate Mr. Haq then relied upon reported Judgment of Hon'ble Supreme Court in the case of Sushil Kumar Sabharwal vs. Gurpreet Singh and others, AIR 2002 se 2370. The reliance is placed in order to demonstrate that bare knowledge of suit was not sufficient, if summons was not actually served. In the Sushi! 17. Learned Advocate Mr. Haq then relied upon reported Judgment of Hon'ble Supreme Court in the case of Sushil Kumar Sabharwal vs. Gurpreet Singh and others, AIR 2002 se 2370. The reliance is placed in order to demonstrate that bare knowledge of suit was not sufficient, if summons was not actually served. In the Sushi! Kumar's case (supra) summons was pasted on the house on an allegation that when the suit notice was served a day before hearing, it was refused. The Supreme Court held that there was no sufficient service. 18. Learned Advocate Mr. Laddhad argued that Exh.11, the application for adjournment filed in Regular Civil Suit No. 609 of 1992, contains positive statements that she had received the summons, she wants to collect the papers and engage a lawyer, meaning thereby that she has, in fact, received the summons, and now, it is not open for her to say that she did not receive the summons. Learned Advocate supported the Judgments of Trial Court and Appellate Court, where both the Courts with detailed discussion recorded a finding that she was served with summons. Learned Advocate for the plaintiff further argued whether she was served with a summons is a question of fact and there is concurrent fact-finding on this point. Courts below have found that the petitioner herein has failed to demonstrate that she had sufficient cause in failing to appear and contest the suit, and this finding, unless could be branded as perverse, no interference was permissible. 19. Learned Advocate, Mr. Laddhad, for contesting respondent (original plaintiff) relied upon following judgments :_ (a) Rabindra Nath Majumdarvs. Ardhendu Dutta and another, 2002 Al HC 2034, (b) A. C. Ananthaswamy and others vs. Boraiah (dead) by Lrs., (2004) 8 SCC 588 , and (c) Sharfunnisa wlo Abdul Karim vs. Maruti Sakharam Kale, 2001 (4) Mh.L.J. 772 . 20. On hearing the parties, this Court finds that the questions, which fall for determination of this Court, are :- (a) As to whether Courts below have correctly held that the petitioner was served with summons? (b) Whether the service is proper and sufficient? (c) On the facts of the case, whether petitioner is entitled for setting aside ex parte decree and the re-trial of suit? (d) Has the petitioner made out a case for interference in the impugned orders in the Revision Application under Section 115, Civil Procedure Code? 21. (b) Whether the service is proper and sufficient? (c) On the facts of the case, whether petitioner is entitled for setting aside ex parte decree and the re-trial of suit? (d) Has the petitioner made out a case for interference in the impugned orders in the Revision Application under Section 115, Civil Procedure Code? 21. Adjudication of the points framed by this Court further depends upon following questions of fact arising in this case which are as follows:- (a) Whether summons was at all issued, and whether petitioner was served with summons, and if any Service Report is on record? (b) What is the weight of evidence of the petitioner when her testimony stating that she was not served with a summon, she came to Court with respondent No. 4 and signed some application which was prepared at the behest of respondent No.4, she did not know the fact of filing of suit was supported by record: (1) that record does not show that summons was at all issued and served on her and no service report is on record. (2) that no testimony of defendant No. 4 has come on record to deny and falsify the version of the petitioner. (c) What shall be the effect of application (Exh.11), through which it is alleged that the applicant appeared in 'response to summons', stated in that application that she has received the summons and she may be granted permission to engage a lawyer to defend her? (d) Do certain denials contained in the deposition of petitioner impeach the testimony of petitioner in totality about her signatures on certain admitted documents? (e) What is the effect of failure of plaintiff to bring any other evidence to prove knowledge of suit and service of summons on the defendant No.1? (d) Do certain denials contained in the deposition of petitioner impeach the testimony of petitioner in totality about her signatures on certain admitted documents? (e) What is the effect of failure of plaintiff to bring any other evidence to prove knowledge of suit and service of summons on the defendant No.1? (f) It is the evidence of plaintiff opposing evidence of the defendant No. 1 of any worth, since he had no personal knowledge as to: (1) as to issue and service of summons on the defendant No.1 (2) Say of defendant No. 1 that defendant No. 4 got the application written from somebody; (3) the source of knowledge the defendant No.1 received about the suit in the eventuality it is demonstrated that he did not receive the suit summons; (4) about the involvement of defendant No.4, as alleged by the petitioner; (5) the weightage of evidence of Process Server, who has served the process in the Regular Darkhast proceedings as to the knowledge of the defendant No. 1 about the suit in which decree was passed? (g) What is the effect of failure of the plaintiff as well as to examine defendant No. 4 to deny allegations made against him in the background of defendant No. 4's admission in Exh.31 in MJC No. 106 of 1993? 22. Now, this Court proceeds to deal with the questions addressed by respective parties. The discussion and finding of this Court are seen hereinafter. 23. Whether suit summons is delivered or not, is always a question of fact. Normally, suit summons is a document which is prepared by the Officer of the Court and served by the Process Server, who is a Public Servant. These documents form integral part of record of the Court, particularly when the suit proceeds ex parte in case of absence of the particular defendant who is to be the contesting defendant, since the Trial Court has to get satisfied that the party against whom decree is in the offing has sufficient opportunity to show cause. It, therefore, primarily becomes necessary for the Trial Court to ascertain whether the service of summons is legal and is duly proved by documents on record. This Court has, therefore, to find out whether this is seen by Trial Court as well as by first Appellate Court. 24. It, therefore, primarily becomes necessary for the Trial Court to ascertain whether the service of summons is legal and is duly proved by documents on record. This Court has, therefore, to find out whether this is seen by Trial Court as well as by first Appellate Court. 24. On discreet scrutiny of Judgments impugned, i.e. first of the Trial Court and then that of the Appellate Court, this Court finds that both the Courts, as the plaintiff has done, banked and relied upon Exh.11 as the foundation of the 'fact' that the defendant No.1 was 'served with summons'. Both Courts are seen relying upon an admission of defendant No. 1 contained in Exh.ll, which when truly translated reads to the effect "recently she has received the summons." Sole reliance is on admission contained in Exh.11. This admission being disputed, does not stand on par with primary evidence of said fact. 25. It is well known that the admissions can always be either withdrawn, resiled, retracted, explained or denied. In either eventuality, the worth and weight of such admission as evidence when it comes under judicial scrutiny, becomes contingent upon fact situation, namely whether said fact has been proved by primary evidence. Therefore, it becomes necessary for this Court to find out before relying upon said admission to find out as to on facts whether summons was served, and to find out if said fact is either borne on record or is otherwise proved. 26. In order to ascertain factual aspect, since both Courts below have not done the exercise of perusing the record of suit, this Court has examined the original records of the Regular Civil Suit No. 609 of 1990, of Regular Darkhast No.4 of 1992 and Misc. Judicial Case No. 106 of 1993. 27. The inspection of record of Regular Civil Suit No. 609 of 1990 reveals as follows :- (a) The Roznama of Civil Suit No. 609 of 1990 reveals that Exhs.1 to 5 are plaintiff s documents, namely (1) plaint (Exh.l), (2) List of Documents (Exh.2), (3) Registered Address (Exh.3), (4) Vakalatnama (Exh.4), and (5) Process Parcha dated 1st October, 1990 (Exh.5). (b) The Roznama shows that after Exh.5, there is no other document, such as summons issued to the respondent. (c) Roznama shows that case was fixed for appearance on 12-11-1990. (b) The Roznama shows that after Exh.5, there is no other document, such as summons issued to the respondent. (c) Roznama shows that case was fixed for appearance on 12-11-1990. (d) In the Roznama dated 12-11-90, after Exhs.1 to 5, next exhibits are (1) Vakalatnama for defendant No. 2 (Exh.6), (2) Memo of Appearance for defendant No.4 (Exh.7), and (3) Registered Addresses (Exhs.8 to 10). In fact, what originally is written seems to be "8 to 11". However, sequence of subsequent exhibits indicates that Registered Addresses may be Exhs. 8 to 10. (e) Exhs. 11 and 12 are applications for time to file Written Statement with orders passed thereon. Exh.13 is an application for supply of plaint map and Exh.14 is an application for time to file Written Statement. (f) It is seen that the case was thereafter adjourned to 11th December, 1990. Roznama of 12th November, 1990 shows that the defendant No.1 has appeared in person. Record does not show that there is Memo of Understanding of next date, or any note of understanding given to or taken by the defendant No. 1 in the form of signature on Roznama, or any other form that the defendant No. 1 has noted the next date fixed for filing the Written Statement. (g) In 'C' file at page 5, there is one more document which is marked as Exh.11, which is the Address Memo of Kalawatibai Pimple, the defendant No.3. (h) In Regular Darkhast No.4 of 1992 and Misc. Judicial Case No. 106 of 1993, record shows that summons/notices are ordered, issued and served, while same is not seen in Regular Civil Suit No. 609 of 1990. 28. It is seen that Exh.1O is Address Memo signed by defendant No. 1. Exh.ll, relied upon by the plaintiff and Courts below, is the application for adjournment signed by the defendant No.1. The application bears a rubber stamp of one Shri V.S. Bhujbal the Petition Writer having Licence No.2 of District Court, Akola. The manuscript - the handwriting on application as well as address memo reveals to be of the same Petition Writer. Contents of Exh.11, if freely translated, are as follows :"Defendant submits as follows :- I have just now been served with a summons. I need certain documents which are important to this case and engage a lawyer. The manuscript - the handwriting on application as well as address memo reveals to be of the same Petition Writer. Contents of Exh.11, if freely translated, are as follows :"Defendant submits as follows :- I have just now been served with a summons. I need certain documents which are important to this case and engage a lawyer. In absence of this, it will not be possible for me to submit my Written Statement. I, therefore, apply for time to file Written Statement." 29. It is seen that other defendants have not seriously contested the claim. Defendant No.2 rather admitted the claim. Defendant No.3 claimed that she has sold the property to defendant No.2, and she was in no way concerned with suit property. Defendant No.4 appears to have been proceeded ex parte. Plaintiff s evidence was recorded, and suit was decreed. 30. It is pertinent to note that in the execution case, as well as in the petition under Order IX, Rule 13, Civil Procedure Code, the service reports have been duly entered in Roznama, and have been preserved on record. It is, thus, a mystery as to how in the Regular Civil Suit No. 609 of 1990 alone, record does not show that the suit summons was issued. Original of suit summons prepared and issued, if any, is not on record, and the plaintiff is required to rely upon statement of the defendant No. 1 contained in Exh.l1 that she had been served with summons. 31. When the application for setting aside ex parte decree proceeded for hearing, the present petitioner stepped into witness box. She had failed to depose even as to basic prayers in her application and in her Examination-in-Chief as to the purpose for which she had come before the Court. All that she had consistently stated is that she did not receive the suit summons, she went to the Court with defendant No.4 twice and she signed some applications. The tenor of evidence reveals that she is a rustic, untutored witness. It is seen that she had fumbled and given replies which, if her testimony is not seen to be that of a rustic woman, is the evidence which is most hazy and fails to prove what one wants to prove. 32. In rebuttal, the plaintiff examined himself. The tenor of evidence reveals that she is a rustic, untutored witness. It is seen that she had fumbled and given replies which, if her testimony is not seen to be that of a rustic woman, is the evidence which is most hazy and fails to prove what one wants to prove. 32. In rebuttal, the plaintiff examined himself. Plaintiff s evidence reveals that he does not have any personal knowledge as to how and whether defendant No. 1 was served with summons. His other witnesses are Process Server and Panch in Regular Darkhast No.4 of 1992. None amongst these two witnesses have personal knowledge about service of summons on the defendant No.1 in Regular Civil Suit No. 609 of 1990. After these witnesses, plaintiffs evidence is closed. 33. This Court has in this background to find out as to was the fact in issue as to service of summons or total lack of need of service of summons on the defendant No. 1 proved/disproved. 34. Insofar as service of original summons being issued and served is concerned, there cannot be two opinions that in the facts of present case, the summons could have been proved to have been served if the chain of circumstances, namely issuance of summons, delivery thereof to the defendant and proof of delivery thereof could have been on record in Regular Civil Suit No. 609 of 1992, and same would have been readily available. The defendant had a burden of negative character, and that was to be discharged by stating that she was not served with summons or showing that the service was not proper or not at all in eye of law. In discharge of her burden, the defendant No.1 has stepped in witness box and deposed that she was not served with suit summons. 35. As is discussed earlier, it is duly borne on record that summons was not at all issued. Roznama, which is a public document, proves the fact that since Exhs.1 to 5 are plaintiff s document, normally Exh.6 could have been and ought to have been the suit summons, which document is totally absent in the present case and had the summons been prepared, issued, served, it ought to have been reflected in Roznama. Roznama, which is a public document, proves the fact that since Exhs.1 to 5 are plaintiff s document, normally Exh.6 could have been and ought to have been the suit summons, which document is totally absent in the present case and had the summons been prepared, issued, served, it ought to have been reflected in Roznama. Further, had it been the original summons along with evidence of service/refusal and bailiff s report which is always submitted to the Court along with signature of the recipient on the original thereof with a sworn statement of the bailiff that the said summons has been served or with refusal or other endorsement of process server ought to be on record. 36. The original summons, signature of the defendant No. 1 and other defendants, and sworn statement of bailiff and record about anyone amongst these are absent in the present case. It is, in this peculiar background that the plaintiff is required to take shelter of Exh.11 and to argue that admission of defendant be relied upon to hold that she was served with a summons, than to show it from evidence, documentary or oral. 37. The defendant No.1 has initially pleaded and then has stated on oath that she did not know about the proceedings. She has explained as to Exh.11 that she accompanied the defendant No.4 in the Court and signed some documents. Defendant's story in application under Order 9, Rule 13, Civil Procedure Code, was opposed by the original plaintiff, denying that the defendant No.4 had by misrepresentation got her signatures on application for adjournment etc. These averments, in fact, and in law, burdened the plaintiff to prove whatever he specifically averred in Exh.9, the reply. In this background, there were two more witnesses at the command of plaintiff to prove that though she was not served with summons, defendant No. 1 was very well aware of the suit. These witnesses are, namely (1) defendant No.4, and (2) the Petition Writer who scribed Exh.l1. It was within the power of plaintiff to bring these witnesses or to seek their attendance by praying for issuance of summons. The defendant No.4 could have been brought into witness box to state that he did not accompany the defendant No.1, rather she herself or with some other person came to the Court or some thing such as alibi. It was within the power of plaintiff to bring these witnesses or to seek their attendance by praying for issuance of summons. The defendant No.4 could have been brought into witness box to state that he did not accompany the defendant No.1, rather she herself or with some other person came to the Court or some thing such as alibi. The Petition Writer, who has scribed' and signed the application (Exh.11) in his capacity as a Petition Writer could have explained as to at whose behest, he wrote the application for adjournment and address memo. It is seen that any efforts are not made to bring these witnesses or to show that they are not alive and hence not called. In this situation, the testimony of defendant No. 1 that she did not receive the summons and the circumstances in which the application (Exh.11) came on record have gone unchallenged, since plaintiff's evidence carries no weightage, whatsoever, and no evidence, whatsoever, in the eye of law as to fact of service of summons on the defendant No, 1 has come on record. 38. In the aforesaid background, the testimony of defendant No. 1 will have to be assessed as to its weight. Her version that she did not receive summons is, thus, proved beyond any room of doubt. 39. In the given circumstances, record does not reveal any other conclusion than that the present is a citable illustration as to how the defendant is not served, yet her appearance is secured, a show is made to demonstrate that she was served, Court is led to pass an ex parte decree, yet due to lack of advertance to record, the Courts below have recorded a finding that the defendant was 'duly served'. Most relevant and rather only evidence to prove that the service was not effected seen from Roznama was not seen by the Trial Court as well Appellate Court. The testimony of defendant No.1, who stated that she was not served with summons and she did not know proceedings and had come to know only with defendant No. 4 who was in collusion with the plaintiff, went wholly unchallenged, yet she has suffered the decree. Thus, it is a case where the findings are contrary to the evidence on record, and are product of total want of advertence to the facts on record and hence perverse. 40. Thus, it is a case where the findings are contrary to the evidence on record, and are product of total want of advertence to the facts on record and hence perverse. 40. After taking overall view of the matter on the points noted in paras 20 and 21, the conclusions, which this Court arrives at, can be summarized as follows :- (a) In Regular Civil Suit No. 609 of 1990, summons was not at all barely issued or served. In the result, the Roznama does not indicate any narration in this regard. (b) This Court further finds that appearance of the defendant No.1 present petitioner in the suit is proved by her to be at the behest of respondent No.4. This evidence as to proof of facts alleged by her in her application has gone unchallenged due to failure of plaintiff to bring evidence of facts to disprove the version of defendant No.1. (c) Failure of plaintiff to seek aid and assistance of evidence of defendant No.4, and in particular Petition Writer Mr. V. S. Bhujbal gives a fatal attack on plaintiffs plea raised to contest the application of the defendant No. 1 for setting aside ex parte decree. (d) This Court finds that the admission of the defendant No. 4 contained in Para No.5 of Exh.31 in MJC No. 106 of 1993 where he has admitted his involvement in helping the defendant No. 1 in coming to Court etc., has not been clarified or denied or got explained by the plaintiff through the defendant No.4 by producing him and other witnesses, and the plaintiff chose to rely upon irrelevant evidence. (e) The conclusion is that the evidence of the defendant No.1 has gone unchallenged on facts proved by her, namely that she was not served with the summons and that she was led to the Court by defendant No. 4 by misrepresentation, more particularly when the respondent No.4 admitted in Exh.31 in MJC No. 106 of 1993 that he had helped the defendant No.1 in coming to Court etc. (f) The defendant No. 1 - petitioner has, therefore, succeeded in proving a case of sufficient and satisfactory cause for failing to appear in the suit. (g) This Court, therefore, answers questions framed by this Court in Para 20 in favour of the petitioner-defendant No.1. (f) The defendant No. 1 - petitioner has, therefore, succeeded in proving a case of sufficient and satisfactory cause for failing to appear in the suit. (g) This Court, therefore, answers questions framed by this Court in Para 20 in favour of the petitioner-defendant No.1. (h) Considering that the judgments impugned suffer from serious defect of rendering a finding which is perverse, this Court shall be competent to exercise jurisdiction under Section 115 of Civil Procedure Code. 41. This Court, therefore, makes Rule absolute, and by setting aside both orders impugned, namely the order dated 17th October, 1995 passed by learned Second Joint Civil Judge (Junior Division), Akola, in Misc. Judicial Case No. 106 of 1993 and Judgment and Order dated 13th April, 1998 passed by learned District Judge, Akola, in Misc. Civil Appeal No. 229 of 1995, allows application filed by the petitioner herein under Order, IX, Rule 13, Civil Procedure Code, in Misc. Judicial Case No. 106 of 1993 with full costs throughout. Order accordingly.