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2016 DIGILAW 590 (RAJ)

Babu Lal Baswal v. S. N. Kapoor Exports

2016-04-27

PRASHANT KUMAR AGARWAL

body2016
ORDER : Mr. Prashant Kumar Agarwal, J. Heard learned counsel for the parties. 2. The defendant-petitioner has filed this writ petition under Article 226 read with 227 of the Constitution of India against the order dated 17.01.2015 passed by Additional District and Sessions Judge No. 10 Jaipur Metropolitan, Jaipur whereby the learned trial Court refused to grant opportunity to lead evidence by the petitioner in support of application filed under Order 9, Rule 13 C.P.C. 3. It was submitted by the learned counsel for the petitioner that the report of refusal made by the Postman on the registered letter is not absolute and it is rebuttable and, therefore, opportunity is required to be granted to the petitioner to show that the report made by the Postman is false and in fact he did not refuse the notice sent to him by way of registered post, but learned Trial Court did not consider this aspect of the matter in a correct perspective. 4. On the other hand, learned counsel for the respondents by supporting the impugned order submitted that as per presumption under the provisions of General Clauses Act, the report made by the Postman on the registered letter is absolute and it is to be treated as absolute. It was further submitted that once the trial Court after considering the report of refusal has ordered to proceed ex-parte against the petitioner, evidence cannot be led to rebut the report made by the Postman. 5. On consideration of submissions made on behalf of the respective parties and the material made available on record, I am of the considered view that the report of refusal made by the Postman is not absolute and it is rebuttable and evidence can be led by the petitioner to show that the report was falsely made and in fact he did not refuse the notice sent to him by way of registered post. The learned trial Court has not considered the issue in a right perspective. I am of the further view that opportunity is required to be granted to the petitioner to lead evidence in support of application filed under Order 9, Rule 13 C.P.C. 6. The learned trial Court has not considered the issue in a right perspective. I am of the further view that opportunity is required to be granted to the petitioner to lead evidence in support of application filed under Order 9, Rule 13 C.P.C. 6. Consequently, the writ petition is allowed and the impugned order dated 17.01.2015 passed by Additional District and Sessions Judge No. 10 Jaipur Metropolitan, Jaipur is set aside and the trial Court is directed to give opportunity to produce evidence to the petitioner in support of the application filed under Order 9, Rule 13 C.P.C. It is made clear that respondents are also entitled to lead evidence in rebuttal of evidence so produced by the petitioner. The stay application is also disposed of. 7. In view of the above order passed, the application No. 19569/2016 filed by the petitioner for early listing of the petition is dismissed as having become infructuous.