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1984 (8) TMI 361

..... ainst the order passed by the learned District Judge, Balasore confirming the order passed by the learned Subordinate Judge, Balasore refusing to set aside the ex parte final decree passed in O. S. 122 of 1970. 2. The petitioner was defendant No. 1 and the opposite party was the plaintiff in the suit for partition (O. S. No. 122 of 1970). The preliminary decree in the suit was passed on 21-12-1973 declaring half share of each of the aforesaid parties in respect of the subject-matter of partition. According to the petitioner, he served as a Porter in Calcutta and when he came home on 24-9-1978, he was informed by his wife that on 18-9-1978 a process server of the civil Court had served a notice by affixture. On going through the notice the petitioner came to know that he was noticed to appear in the Court of the Subordinate Judge, Balasore in Execution Case No. 14 of 1978. He came and met his Advocate at Balasore on 15-8-1978 and showed the execution notice to him. The advocate inspected the execution record on 28-9-1978 and informed the petitioner that in O. S. No. 122 of 1970 a final decree was passed on 18-11-1976 and the said decree was under execution in Execution Case No. 14 o .....

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..... red post and further he had notice of Misc. Case No. 45 of 1976 under Section 151 of the Code during pendency of the final decree proceeding. Accordingly he confirmed the order of the trial Court. 5. Mr. S. C. Roy appearing for the petitioner raised the following contentions; i) The trial Court recorded a finding that service of notice through the process-server by affixture was insufficient because the petitioner was in Calcutta. The petitioner denied on oath having received or refused notice of the final decree proceeding by registered post. The opposite party did not prove either posting of the notice by producing the postal receipt or the postal A. D. showing either receipt or refusal of the notice by the petitioner. Therefore, he did not discharge the onus which lay on him nor proved sufficiency of service of notice of the final decree proceeding on the petitioner. ii) In view of the petitioner's denial of service of any notice of the final decree proceeding, the opposite party did not discharge his burden by proving service of notice on the petitioner by the civil Court commissioner during continuance of the final decree proceeding, and iii) There is no material on record .....

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..... cover containing the notice of the final decree proceeding was also not examined. The postal cover with the postal A.D. which was said to have been refused was not brought on record and duly proved. The civil Court commissioner was not examined to prove that he served the notice on the petitioner and that the latter was present at the time of survey of the subject-matter of the partition. His report was also not brought on record to show that the petitioner participated at the time of survey. The records of Misc. case No. 45 of 1976 particularly the objection filed by the petitioner therein was also not brought on record and duly proved. 7. In view of the findings recorded by both the Courts below, the contentions raised by the learned counsel and the oral evidence adduced in the case, the following points arise for determination : i) Whether there was sufficient service of notice of the final decree proceeding on the petitioner through the process server of the Court; ii) Whether there was proper service of notice of the aforesaid proceeding on the petitioner by registered post; iii) Whether the civil Court commissioner appointed in the final decree proceeding served notice on the .....

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..... s sufficient. It was urged by Mr. Roy that since the petitioner in his evidence denied service of notice through the process server and discharged the initial onus that lay on him, the onus of proof shifted to the opposite party who made no attempt to prove the essential ingredients of Order 5, Rule 17 of the Code. In the absence of compliance thereof, it cannot be held according to law that there was sufficient service of notice of the final decree proceeding on the petitioner. With regard to onus of proof two decisions may be noticed. In the first decision reported in MANU/OR/0031/1961MANU/OR/0031/1961, Reghunath Pani v. Radhakanto Deb, it was held that onus of proof lay on the party who asserted that there was sufficient service of summons. Therefore, such party should prove by examination of the process server that service of summons was duly effected according to the provisions of Order 5 of the Code. In that particular case, the landlord defendant asserted sufficiency of service of summons and so it was held that onus was upon him to prove that there was proper service of summons by examining the process server. In the next case reported in MANU/OR/0128/1963MANU/OR/0128/1963 .....

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..... opposite party who made no attempt to prove the essential ingredients of Order 5 Rule 17 of the code by examining the process server. In the absence of compliance thereof, it cannot be held according to law that there was sufficient service of notice of the final decree proceeding on the petitioner. 9. According to the opposite party, notice of the final decree proceeding was sent to the petitioner by registered post with A.D., but the same was refused. The Courts below accepted such service as sufficient. Mr. Roy urged that the postal cover with the endorsement of the Postman which were patently not public documents were not proved and duly admitted into evidence as exhibits. The Postman was also not examined as a witness. Therefore, the Courts below committed a serious error in recording a finding that there was proper service of notice of the final decree proceeding on the petitioner by registered post. Order 5, Rule 10 of the Code provides that service of summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court. A proviso to Rule 10 was added in Orissa by way of amend .....

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..... edly, the presumption is one of the fact and rebuttable. The presumption is not rebutted by denial on oath by the addressee unless it is believed by the Court. The basis of the aforesaid view is undoubtedly the Orissa amendment of Rule 10 and Rule 19A and finds support from the decisions reported in AIR 1958 Cat 251, Sushil Kumar Chakravarty v. Genesh Chandra Mitra (1970) 2 Mad 535, M. Janakiram Naidu v T. R. Arumugha Mudaiiar and a Full Bench decision of the Gujarat High Court reported in MANU/GJ/0099/1975MANU/GJ/0099/1975 Memon Adambhai Haji Ismaif Bhaiya Ramdas Badiudas. It can, therefore, be held on interpretation of the Orissa amendment to Rule 10 and Rule 19A that on the roof of the facts that a prepaid properly addressed postal cover containing the notice/summons was sent by registered post and when acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the notice/summons is received back by the Court with an endorsement purported to have been made by a postal employee to the effect that the defendant or his agent has refused to take delivery of the postal article containing the notice/summons when tende .....

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..... se the petitioner was aware of the final decree proceeding. While cross-examining the petitioner (P.W. 1) no questions were asked drawing his attention to specific statements which he might have made either in his objection or in his evidence in the said Misc. Case. It must be remembered that the Civil P.C. embodies provisions conforming to the rules of natural justice and no order adverse to a party can be passed without notice to him. It cannot therefore, be held that the petitioner participated in the Misc. Case so as to impute his knowledge of the final decree proceeding. In this view of the matter the finding of the Courts below that the petitioner having participated in Misc. Case No. 45 of 1976 had knowledge of the final decree proceeding cannot be sustained. 13. Since the petitioner came to know of the ex parte final decree on 28-9-1978, the petition is not barred by Article 123 of the Limitation Act. 14. Before parting with the case I would like to observe that material documents were referred to and relied upon by the Courts below in formulating their findings without those documents being admitted into evidence and duly exhibited. The documents were public as well as pri .....

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