SOHAN SINGH Vs. SURAT SINGH

JUDGEMENT

(1.) It may be stated at the outset that the original summons issued to the petitioner is not available on the record of the trial Court. So, the crucial question for both the courts below was whether the testimony of the petitioner as AW 1 and his son Saran Jeet Singh, who was the only other witness examined by him to the effect that the petitioner was never served with the summons in the suit should be believed as against the judicial order dated 11.7.74 recording that deft. No. 3 had been served with the summons but was not present. On a consideration of the evidence on record both the courts below have given concurrent finding that petitioner No. 1 had been duly served as recorded in the aforesaid order. It may be noticed here that there is also a note in the sheet just below the order dated 4.5.74 showing that defts. 1, 2 and 4 had not been served whereas deft. No. 3 had been served personally. The learned counsel for the petitioner has, therefore, canvassed with considerable fervour that the courts below have slipped into a grave error in not believing the evidence of the petitioner and his son, both of whom denied receipt of summons in the suit in categorical, terms. To be precise his line of argument is that order dt. 11.7.74 was apparently passed by the court on the basis of the note recorded by the Reader to which I have already alluded. So, the presumption of correctness, if any, touching to the said order was intrinsically weak and it was abundantly rebutted by denial on oath of the receipt of summons by the petitioner, and his son ; more so when the process server, who had delivered the summons and effected service on the petitioner, was not even examined. The learned counsel has also taken me through the evidence of the Decree Holder-Surat Singh to bring home the point that he is a rank liar and his evidence that service was effected on the petitioner personally in his presence is not at all worthy of credence especially when he was not able to tell the name of process server who had accompanied him for effecting service of the summons on the petitioner.

(2.) On a consideration of the entire material, I am satisfied that the impugned order does not suffer from any legal infirmity which would vitiate it and warrant inference by this Court. The burden of proving that the summons was not duly served was on the defendant-petitioner as would be manifest from the word "if he satisfies the court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing" appearing in Rule 13 of Order IX. The submission of Mr. Vohra, the learned counsel for the petitioner, is that the petitioner could not possibly produce any evidence except denying the receipt of summons and thereby shifting the burden of proof to the D.H. to prove service on him. In other words, the onus then lay on the respondent- D.H. to prove the positive fact of service of the summons on the petitioner. I do not feel persuaded to accept this argument. It is for the simple reason that it was for the court of fact to appraise the evidence of the petitioner including his denial vis-a-vis other evidence on record and then arrive at the conclusion whether the denial of the petitioner inspired confidence or not. Unfortunately for the petitioner, in the face of the concurrent finding of the courts below it is not for the High Court to re-appraise the entire evidence de novo and arrive at its own conclusion as if it were dealing with it on the first instance. Merely because the High Court would have felt inclined had at dealt with the matter initially to come to a different conclusion as regards creditworthiness of the petitioner's evidence would hardly afford a justification for this Court to re-appraise the entire evidence. (See M/s Bhojraj Kunwarji Oil Mill v. Yograjsinha AIR 1984 SC 1894.)

(3.) That apart, assuming argu-endo that the concurrent finding of the courts below is not correct, the High Court in exercise of its revisional power u/s 115 of the Code, which is very limited in nature and scope, cannot interfere with the same. It is settled law that where a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with material irregularity because it has given an erroneous decision on a question of fact or even of law. The leading case on the subject is Raja Amir Hassan Khan v. Sheo Baksh Singh, 11 Indian Appeals 237, in which Privy Council observed that :