GURMEET SINGH Vs. ORIENTAL BANK OF COMMERCE

JUDGEMENT

(1.) The appellants seek setting aside of the order dated 8.8.2002 passed by the learned Addl. District Judge dismissing the appellants' application under Order 9 Rule 13, CPC.

(2.) The respondent herein had filed a suit for recovery of Rs. 4,43,714.55. The Trial Court recorded that appellants were served. Since appellants did not put in appearance, they were proceeded ex parte. Ex parte evidence was led and the final order was passed on 23.7.1987. The appellant moved an application under Order 9 Rule 13, CPC on the ground that the appellants had not been served with the summons and therefore did not get an opportunity to defend the suit.

(3.) Learned counsel for the appellants contents that on the refusal of the appellants to accept the summons of service, the affixation on the outer door was bad as there was no witnesses to the affixation or for the recording of The refusal. In these circumstances, the appellants were not properly served. The Court has drawn a presumption under Section 114 of the Evidence Act that the Process Server "must have" done his job properly while discharging his official duty. However, the Court lost sight of the fact that there are special provisions with regard to service in a situation where the person refuses to accept the service. Service cannot be accepted to have completed on the basis of presumptions.