SUSHIL KUMAR SAHA Vs. JURAN CHANDRA SAHA

JUDGEMENT

(1.) This revision is directed against the appellate judgment dated 23-2-87 passed by the Assistant District Judge, Dhubri in Misc. Appeal No. 12 of 1986, dismissing the appeal and affirming the judgment dated 24-2-86 passed by the First Munsiff, Dhubri in Misc. (J) Case No. 76 of 1984, arising out of Title Suit No. 689 of 1982.

(2.) The opposite party filed a suit for declaration of right, title and interest over the suit land and for recovery of khas possession. In usual course summons was issued to the petitioner. The suit was filed on 25-11-82 and the summons was served on 27-11-82 by hanging. The Process Server served summons as identified by the wife of the opposite party and when the summons was tendered to the petitioner he refused to accept the same, accordingly, he affixed a copy of the summons on the main door of his house. A copy of the summons was returned by the Process Server with his report. As per the said report, the petitioner refused to accept the same. No independent and disinterested witness was present at the time of service of summons by hanging. After such service of summons, the case was put up on 22-12-82 as fixed earlier and the Munsiff on the basis of the said report accepted the summons and ordered to proceed the suit ex parte. Thereafter the suit was decreed ex parte. On coming to know about the ex parte decree, the petitioner filed a petition under Order IX Rule 13 of CPC for setting aside the ex parte decree on the ground that the summons was not served on him, in fact, the petitioner was not at his residence at that time and no person resided along with him in his residence.

(3.) The opposite party examined four witnesses, viz; his wife, the process server and two others. The petitioner examined himself and an another witness. After appreciating the evidence, the Munsiff disbelieved the case of the petitioner and rejected the petition for setting aside the ex parte decree. An appeal was preferred before the Asstt. District Judge and the Asstt District Judge also affirmed the judgment holding that the petitioner failed to establish his case that the summons was not duly served on him. The Appellate Court after appreciating the evidence held that the story told by the opposite party is correct and, therefore, it cannot be said that the summons was not served.