KANAN PRASAD Vs. ANJAN GOSWAMI AND ORS.

JUDGEMENT

(1.) Leave is granted to learned counsel for the petitioner to file certified copy of the trial court's order, which is kept on record.

(2.) The present challenge is directed against an order whereby the courts below concurrently dismissed an application filed by the petitioner for restoration of a suit upon recalling an ex parte decree passed therein. The contention of the petitioner is that both the process server's report showing service of summons and the postal peon's endorsement on the envelope sent to the petitioner was refused, amounting to a good service, were collusive. The petitioner led oral evidence to assert that no service was effected either way on the petitioner. Although the petitioner was cross-examined, it is submitted that the denial of service stood unshaken in the cross- examination. No independent evidence was led by the opposite parties to controvert such evidence of the petitioner. As such, it is argued that the presumption which might have been attached to the service by registered post as well as through process server of court was sufficiently rebutted. As such, it is argued that the courts below acted without jurisdiction in dismissing the petitioner's application for restoration of the suit.

(3.) Learned counsel for the petitioner, in support of his contentions, cites a Division Bench judgement of this Court reported at AIR 1989 Cal 14 (Mono Ranjan Dasgupta Vs. Suchitra Ganguly and others), wherein it was held inter alia that, in a suit filed under Sec. 13 of the West Bengal Premises Tenancy Act, 1956, no presumption could be attached to the service of a notice under sub- Sec. (6) of the said Sec. by importing Sec. 28 of the General Clauses Act. It was held that where a notice was required or authorised to be served by post, an obligatory presumption of due service would arise, but if there was no mandate in the statute to serve by registered post, but a notice was nevertheless served by post, registered or ordinary, a court may (not that it must) in a given case raise a presumption of due service under the provisions of Sec. 114 of the Evidence Act. But in either case, it was held, the court may, in view of the sworn assertion of the addressee to the contrary, or some other reliable evidence on record, hold any such presumption to have been rebutted.