JUDGMENT : A.S. Naidu, J. - Opposite Party as Plaintiff had filed T.S No. 243 of 1981 in the Court of the Learned Civil Judge (Senior Division), Cuttack for declaration of title & for injunction against the Petitioner, who was Defendant in the said suit. The suit was decreed ex-parte on 16.2.1985. Thereafter a petition for mutation was filed by Opposite Party for recording of her name in the Tahasil records. The prayer was allowed in Mutation Case No. 3925 of 1976 & necessary corrections were also made in the Record of Rights. 2. Mr. Mukherjee, Learned Counsel for the Petitioner submitted that without serving any notice on the Petitioner, the Opposite Party obtained an ex-parte decree though the Petitioner was all along in possession of the lands. On 08.11.1995 for the first time the husband of Opposite Party tried to forcibly enter into the land & started cultivating operations. Protest being made, husband of Opposite Party disclosed that he had already obtained a decree from the Civil Court in favour of his wife. Thereafter, the Petitioner, it is submitted came to Cuttack, consulted with her advocate, inspected the records & came to know that an ex-parte decree was obtained against her in T.S No. 243 of 1981. On coming to know about the said fact a petition was filed under Order 9, Rule 13 of C.P.C with a prayer to set aside the ex-parte decree. The said petition was registered as Misc. Case No. 477 of 1995 in the Court of the Learned Civil Judge (Senior Division), Cuttack. In course of time the case was transferred to the Court of the Learned Civil Judge (Junior Division), First Court, Cuttack & was renumbered as Misc. Case No. 261 of 2001. Opposite Party appeared in the said case & resisted the prayer. To substantiate their case both parties adduced oral evidence. The Learned Civil Judge (Junior Division), dismissed the Misc. Case & refused to set aside the ex-parte decree. Being aggrieved the Petitioner filed M.A No. 115 of 2002 in the Court of the Learned District Judge, Cuttack. The said appeal was finally heard by the Learned Ad hoc Addl. District Judge, Fast Track Court No. lll, Cuttack & by Judgment dated 22.8.2003 the appeal was dismissed. The aforesaid orders passed by the Courts below are assailed in this Writ Petition. 3. Mr. The said appeal was finally heard by the Learned Ad hoc Addl. District Judge, Fast Track Court No. lll, Cuttack & by Judgment dated 22.8.2003 the appeal was dismissed. The aforesaid orders passed by the Courts below are assailed in this Writ Petition. 3. Mr. D. Satpathy & associates entered appearance for Opposite Party. In course of hearing, it appears that Consolidation proceedings have been initiated in the mouza where the lands are situated & the Petitioner had been recorded as Stitiban Tenant in respect of the suit lands in Consolidation record of rights-finally published on 23.4.2003 (Annexure-8). Mr. Mukherjee took pains to place the matter & submitted that the properties were initially recorded in the name of one Sunamani Dei, W/o Krupasindhu Lenka. She sold the properties to the Petitioner by Registered Sale Deed on 02.12.1975 & also handed over possession thereof. After vesting of the State, it is submitted that the lands were settled in favour of the Petitioner as would be evident from Annexures 2 & 3 & the Petitioner was paying land revenue regularly. 4. It is alleged that the summons issued in T.S No. 243 of 1981 instituted by Opposite Party were sent to the Petitioner by registered post as well as through process. The Postman reported that the addressee (Petitioner) was not available & returned the notice un-served. It is submitted that at that relevant time husband of the Petitioner, who was an employee of Special Land Acquisition (Irrigation), was posted at Talcher & the Petitioner was staying with her husband at Talcher. It is stated that the summons of the suit were never served upon the Petitioner & she had no occasion to refuse to accept the same. It is further submitted that though summons were issued through Process Server the same were never offered to the Petitioner as she was staying at Talcher. A frivolous report was submitted in the Court to the effect that the Petitioner had refused to accept the said summons & the service was treated to be sufficient. Thereafter, the suit was decreed ex parte. To substantiate the case, the Petitioner got her husband examined as witness on her behalf. He had clearly stated that the Petitioner was staying with him at Talcher at the relevant time. He also stated that the summons of the suit were never offered to her wife. 5. Thereafter, the suit was decreed ex parte. To substantiate the case, the Petitioner got her husband examined as witness on her behalf. He had clearly stated that the Petitioner was staying with him at Talcher at the relevant time. He also stated that the summons of the suit were never offered to her wife. 5. Opposite Party also got one witness examined. The Trial Court relying upon the statement made by Opposite Party who was examined as witness & deposed that the summons were served on the Petitioner in her presence but then she refused to accept the same, came to the conclusion that Opposite Party failed to establish the fact that there was sufficient reasons for her non appearance in the Court. On the said ground alone the petition filed under Order 9, Rule 13 of C.RC was dismissed. 6. The Appellate Court had also discussed the evidence in extenso & came to the conclusion that the Plaintiff was able to prove that the summons of the suit were duly offered to the Petitioner by the Process Server but she refused to accept the same. The Appellate Court also found that the Petitioner had failed to establish that there were sufficient reasons to set aside the ex parte decree. After going through the orders passed by both the Courts below this Court finds that Opposite Party who was Plaintiff before the Court below was able to substantiate her case by adducing evidence that though the summons were offered to the Petitioner-Defendant but then she refused to accept the same. Unfortunately, no steps were taken by the Petitioner to summon either the Process Server or the Postman to substantiate her stand that summons were never offered to her. 7. Under Order 9, Rule 13 C.P.C the onus lies on the applicant to satisfy the Court that the summons were not duly served. In a case where the Defendant asserts that there was no service by affixture &. the Plaintiff does not oppose it the question as to who would examine the process server is somo what academic. On the other hand if according to the Plaintiff the summons were offered to the Defendant in her presence & she refused to accept the same. Examination of the Process Server who was an independent witness was very much necessary. The sole question arises as to who would examinethe Process. On the other hand if according to the Plaintiff the summons were offered to the Defendant in her presence & she refused to accept the same. Examination of the Process Server who was an independent witness was very much necessary. The sole question arises as to who would examinethe Process. Server under such eventuality. However, if the Court records an order which satisfies the tests laid down under Order 5, Rule 19 of C.P.C the applicant is confronted with the difficulty of getting over the order of the Court regarding a finding that service is sufficient. In such a case it is incumbent on the applicant to examine the Process Server & get a statement from him that the summons were never offered to him/her. 7.1 In the case at hand the report of the Process Server indicates that the Defendant refused to receive the summon; thus it should be held that the summons were served under Order 5, Rule 17 of C.P.C. Order 5, Rule 19 C.P.C prescribes as follows: Where a summons is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, & may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, & may make such further enquiry in the matter as it thinks fit; & shall either declare that the summons has been duly served or order such service as it thinks fit. Thus the only material on which a Court could come to a conclusion that summons had been duly served or not is the endorsement made - on oath, on the summon itself. It is not proper for a Court to proceed with the hearing of the case ex parte & pass a decree without an order that the Defendant had been duly served with the notice. In the case at hand, the endorsement made in the back of the summons clearly reveal, as would be evident from the materials available, that on being identified by the Plaintiff the Process Server offered the summons to the Defendant but she refused to accept the same. The fact is also established by oral evidence. In view of such endorsement coupled with the affidavit the Court below rightly accepted due service of summons. The fact is also established by oral evidence. In view of such endorsement coupled with the affidavit the Court below rightly accepted due service of summons. Unfortunately, however, no steps were taken by the Petitioner who was Defendant in the Court below, to either examine the Process Server &/or to take any other steps to disprove proper service. 8. In this context, the service report was verified by an affidavit of the Serving Officer & added to that the Plaintiff had stated that the summons were tendered to the Defendant in her presence & she had refused to accept the same. Thus the Trial Court rightly came to the conclusion that the Plaintiff had proved due service of the summons. See 1963 (29) CLT 607 . After going through the entire evidence as well as the orders passed by the Courts below this Court finds that the Petitioner who was Defendant in Court below failed to establish her case by adducing cogent evidence that the summons of the suit were not served upon her. Both the Courts below discussed the evidence in detail & this Court finds no infirmity or illegality in the conclusions arrived at & therefore declines to interfere with the impugned order. The Writ Petition is accordingly dismissed. Final Result : Dismissed