SURJIT SINGH Vs. INDU

JUDGEMENT

(1.) THIS revision petition has been preferred against the orders dated 21.5.2009 in petition No. 47 of 2003 and dated 29.9.2009 in petition No. 132 of 2009 passed by the learned Civil Judge (Senior Division), Una, District Una.

(2.) MATERIAL facts necessary for the adjudication of this petition are that petitioners-plaintiffs (hereinafter referred to as `plaintiffs' for convenience sake) filed a suit No. 45 of 2001 against the respondent-defendant (hereinafter referred to as `defendant' for convenience sake). Defendant was proceeded ex parte on 15.1.2002. Thereafter ex parte decree was passed by the learned trial court on 28.5.2002 in favour of the plaintiffs. Defendant preferred an application under order 9 rule 13 of the Code of Civil Procedure for setting assigning ex parte decree dated 28.5.2002 passed in civil suit No. 45/2001. The same was allowed by the learned Civil Judge (Senior Division), Una on 21.5.2009 and an ex parte decree dated 28.5.2002 was set aside subject to costs of Rs. 1,000/-. The plaintiffs filed petition, under order 47 rule 1 read with sections 114 and 151 of the Code of Civil Procedure to review order dated 21.5.2009 passed in C.M.A. No. 47 of 2003.

(3.) THE question, which arises for consideration in this application is whether the defendant was duly served in civil suit No.45/2001 or not. Summons were sent to the defendant for 15.1.2002 through registered post and acknowledgement purportedly signed by the defendant, was received in the court and on the basis of the acknowledgement, defendant was proceeded ex parte on 15.1.2002. THEre is presumption attached under section 114 of the Evidence Act that R.A.D. cover containing the summons was duly delivered to the defendant by the postal authorities. However, this presumption is rebuttable. Defendant has appeared as AW-1. She has testified that she had been residing at Mugeli Road, Near Jubble Engineering Works Bilaspur, District Bilaspour (Chhatisgarh) and no summons ever came on this address. She has denied her signatures on the acknowledgement. THE plaintiffs have not produced the official of the postal Department, who has delivered the registered letter to the defendant and has obtained the signatures on the acknowledgement to testify that the registered letter was in fact delivered to the defendant and acknowledgement was signed by her. THE plaintiffs have not got the signatures of the defendant compared from the Handwriting Expert. THEy have also not led any tangible evidence to prove that the defendant was duly served in accordance with law. THE plaintiffs throughout knew that Sh. Gian Singh Chadha was the general power of attorney of the defendant. However, no notice was ever sent to him.