HINDU MANILA VIDHYALAYA Vs. RAJEEV DAVE

JUDGEMENT

(1.) HEARD Mrs. Rama Goel Bansal learned Counsel for the revisionist and Sri Rishi Chaddha learned Counsel for the plaintiff-opposite party. This revision has been received as a fresh case by nomination and with the consent of learned Counsels is being decided today itself.

(2.) THE defendant-revisionist has challenged the order dated 16.4.2009 passed in S.C.C. Suit No. 26/2003 by the Additional District Judge, Court No. 12, Allahabad u/s 25 of the Provincial Small Causes Courts Act. By the impugned order, the application 26 (ga) filed by the defendant-revisionist has been rejected. The revisionist had filed the application for recall of the order dated 28.2.2004 whereby the case was directed to proceed ex-parte against the defendant he having no filed any written statement. The order indicates that the summons were issue were served by the process server which bore the signature, date and seal of the revisionist-institution acknowledging receipt of the summon on 9.10.2003. The Court below has rejected the application of the defendant holding therein that once summons were served, no sufficient reason has been shown by the defen­dant-revisionist for non-appearance before the Court when the order dated 28.2.2004 was passed for proceeding ex parte against him. It has also been recorded that no affidavit has been filed by the clerk who is alleged to have signed the summons in acknowledgment nor the Counsel for the revisionist has filed any affidavit to indicate that the revisionist had no knowledge about the pendency of the S.C.C. Suit No. 26/2003 and it was he who informed the revi­sionist about the proceedings. The Court has therefore affirmed the order dated 28.2.2004 and directed that the proceedings of the suit should proceed ex parte against the defendant.

(3.) ON the aforesaid basis, the contention is that in the present case when there was a clear denial in the affidavit filed by the Manager regarding non-receipt of summons, it was the plaintiff who had to prove that the summons had been served in the office of the revisionist and for the said purpose, he was required to examine the process server and other requirements for discharge his burden of proof.