DISTRICT HAMIRPUR Vs. JAMUNA DEVI

JUDGEMENT

(1.) IN a suit for specific performance filed by the petitioner, herein as plaintiff, against the respondent, herein being the defendant, summonses were issued against the defendant for the first time through the process serving agency as also registered AD post for 22.09.2004. The record reveals that incidentally the Process Server as also the Postman visited the premises of the defendant to effect service of summonses upon her on the same day, that is, 14.09.2004. Whereas as per report of the Process Server at the time of his visit to the house of the defendant the house was found locked and on enquiry it was found that she had gone to Hamirpur to visit her sister. The report of the Process Server is duly authenticated by witness Shiv Kumar. However, as per remarks dated 14.09.2004, appended by the Postman on the registered AD cover, the defendant refused to accept service of the registered AD letter and as such the same was returned to the sender. It was against the aforesaid background that the defendant was proceeded against ex parte vide order dated 22.09.2004. Consequently, the suit proceeded further and it was at the stage of ex parte arguments when the defendant moved an application under Order 9 Rule 7 read with Section 151 CPC for setting aside the ex parte order dated 22.09.2004 and the same has been allowed by the learned trial court vide the impugned order dated 25.07.2011. Being aggrieved, the plaintiff is in revision before this Court.

(2.) THE record further reveals that after the ex parte order dated 22.09.2004 was set -aside, the defendant has also entered upon defence whereafter replication has also been filed and issues have been settled. Lastly, the suit was fixed for 05.11.2011 for plaintiff 'sevidence to be produced on self -responsibility.

(3.) IT is a settled principle of law that official acts are deemed to have been carried out by the concerned officials in accordance with the prescribed norms and procedures. In this case, the reports of the Process Server and the Postman, though each dated 14.09.2004, yet are conflicting that whereas according to the former at the time of his visit to the house of the defendant, the house was found locked and she was stated to have gone to visit her sister at Hamirpur. According to the Postman, the defendant had refused to accept delivery of registered AD letter. The learned trial court has come to the conclusion that the defendant can not at the same time be not present at her house and refused service of summons sent through registered AD post and accordingly has proceeded to set -aside the ex parte order dated 22.09.2004. However, the possibility can also not be ruled out that the visits of the Process Server and the Postman to the house of the defendant, though on the same day, were at different times and as such whereas at the time of the visit of the Process Server, she was not present at her house, but when the Postman went there, she might have come back home from Hamirpur. In the facts and circumstances of the case, there is no lawful cause or basis to cast any doubt on any of the reports submitted by the Process Server and the Postman. Thus, to my mind, in the given facts and circumstances of the case and on an overall view of the matter, it shall be expedient and in the interest of justice to err on either side and come to the conclusion that in the preponderance of probabilities it shall be just and reasonable to afford an opportunity to the defendant to contest the suit on merits instead allowing the ex parte order dated 22.09.2004 to stand against her, as has been done by the learned trial court.