P.C.SYOTA Vs. MOHINDER SINGH

JUDGEMENT

(1.) This revision petition is directed against the order dated 21.6.2001 passed by the learned District Judge, Shimla whereby the application of the petitioner/defendant (hereafter referred to as the petitioner) praying for setting aside the exparte order dated 28.7.2000 has been dismissed though he has been permitted to take part in the further proceedings.

(2.) The relevant and undisputed facts are that the respondent/plaintiff has instituted a suit against the petitioner and respondents No.2 and 3. In the said suit the petitioner had been ordered to be proceeded against exparte vide order dated 28.7.2000 on the basis of a report made on the notice, issued to the petitioner, that he had refused to accept service of the notice. The petitioner moved an application for setting aside the said order en the ground that the notice for his appearance on 28.7.2000 was neither tendered nor served on him and in fact he was not present even in the office on the date of report of the Process Server. The respondent/plaintiff did not file any reply to the application. Without calling upon the petitioner to lead any evidence in support of the averments made in his application, the learned District Judge disbelieved the averments as made in the application and relied on the report made on the notice by the concerned Process Server.

(3.) The averments of the petitioner that the notice was neither tendered nor served on him as he was not present at the place where it was reported to have been tended to him for service, is a matter of proof. Therefore, the petitioner ought to have been given an opportunity to lead evidence to substantiate his averments in the application as such averments, if proved, will have material bearing on the fate of the application. The failure to call upon the petitioner to lead evidence to prove the said averments has resulted in miscarriage of justice.