ARUN KUMAR Vs. DISTRICT JUDGE SAHARANPUR

JUDGEMENT

(1.) WRIT Petition No. 6588 of 1982 has been preferred by Arun Kumar against the judgment of the District Judge, Saharanpur, dated 18 -5 -1982, dismissing Ceiling Appeal No. 200 of 1981, whereas Writ Petition No. 6590 of 1982 has been filed by Rajiv Kumar against the judgment of the District Judge, Saharanpur, of the same date dismissing Ceiling Appeal No. 223 of 1981. Both the Petitioners In the two writ petitions are real brothers.

(2.) A statement under Section 6(1) of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act') was filed by Rajiv Kumar. A similar statement was filed by Arun Kumar with respect to his properties. After survey and verification in each of the two cases, a draft statement was prepared. This draft statement was sent by the Competent Authority by registered post to Rajiv Kumar, and another draft statement was sent to Arun Kumar. No objections were filed either of these two persons. Consequently, 5204.17 square metres of land in the case of Arun Kumar and 5834.74 square metres land in the case of Rajiv Kumar was declared as surplus on 4 -6 -1981. On 3 -9 -1981, these two Petitioner) filed two separate applications for setting aside the ex -parte orders dated 4 -6 1981. The applications were rejected by the Competent Authority on 17 -9 -1981 on the ground that since there was no provision for setting aside the ex -parte orders, the applications were not maintainable. The Petitioners of both these petitions filed two separate appeals before the District Judge, which were numbered as Ceiling Appeals 200 and 223 of 1981. Both of these appeals were dismissed by the District Judge. He did not go into the merits of the case. He, however, found that as the draft statement had been sent by registered post which had been returned back with the endorsement "refused" in each one of these two cases, there would be a presumption of due service. He refused to entertain and consider the affidavits which had been filed by the Petitioners of the two cases in their respective appeals alleging that the notice had not been refused by them. Against the dismissal of the appeals, these to writ petitions have been filed.

(3.) IN an appeal preferred against an ex -parte order, the appellate court can go into the ground of non -appearance of the defaulting party as well. In the instant case, the District Judge examined the ground of default of the two Petitioners before the Competent Authority and drawing the presumption from the endorsement of refusal held that the notice must be deemed to have been sufficiently served on each of them. There can be no doubt that in law there is a presumption about the correctness of endorsement made on a registered cover, but the party aggrieved by such an endorsement has the right to rebut the same by bringing evidence to that effect. Upon evidence being brought, the court will have to consider the same and after considering the same if it finds the evidence of the defaulting party to be reliable, it can set aside the order of the Competent Authority, and send the case back for a fresh decision.