$~A-2 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: August 30, 2016 + CM(M) 280/2016 PUSHPA FABRICS PRIVATE LIMITED Petitioner Through Mr.[ENTITY], Advocate. versus NAVEEN KOCHHAR PROPRIETOR M/S NAVEEN ENTERPRISES Respondent Through Mr.[ENTITY], Advocate. CORAM: HON'BLE MR. JUSTICE [ENTITY] [ENTITY], J. (ORAL)
1. The present petition is filed under Article 227 of the Constitution of India to impugn the order dated 16.02.2016 by which an application under Order 9 Rule 13 CPC for setting aside the ex parte decree dated 27.04.2013 filed by the respondent was allowed.
2. The petitioner filed a suit for recovery of Rs. 17,06,550/-. On 27.07.2011, the trial court noted that the summons issued against the respondent by way of registered post have been received with the report that the respondent has refused to accept the summons which amounts to valid service. As none had appeared, the respondent was proceeded ex parte. An ex parte decree was passed on 27.04.2013.
3. The respondent thereafter moved the present application stating that they were never served with any summons and had no knowledge about the pendency of the suit till 05.05.2014, when the bailiff visited the premises of the family concern of the respondent.
4. The trial court framed issues on 24.01.2015 and parties were granted an opportunity to lead evidence. The respondent examined five witnesses whereas the petitioner did not examine any witness. The trial court noted that the respondent has tried to establish that the address at which summons were sent and tendered does not belong to him and summons were not sent at the correct address. The trial court rejected this contention. On the second issue regarding the report of refusal sent by the postal authorities, the trial court noted that the respondent entered the witness box and deposed on oath that summons were not tendered to him by the postman. It further noted that the petitioner failed to contradict the testimony of the respondent. The court noted that the earlier order shows that the respondent was deemed to be served on the presumption raised due to the refusal report of the postman. The presumption drawn was a rebuttable presumption. The trial court concluded that the respondent had entered the witness box and deposed that no summons were tendered to him by the postman. He stood the test of cross-examination. The trial court also relied on the other material on record and concluded that the same supports the submission of the respondent. The court also noted that the petitioner had failed to come to the witness box to depose on oath regarding the service of summons or failed to summon the concerned postal officials. According, the ex parte order was set aside.
5. I have heard the learned counsel for the parties.
6. Learned counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of [PRECEDENT] and [PRECEDENT] to contend that it is settled law that there is a presumption of service of a letter sent under the registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept. The presumption is rebuttable but the onus is on the person who seeks to rebut the presumption. It is submitted that the onus was on the respondent and not on the petitioner as the impugned order has wrongly concluded.
7. The Supreme Court in the case of [PRECEDENT]) held as follows:-
"8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover. We are, therefore of the opinion that the letter dated 24.4.1974 was served on the respondent and he refused to accept the same. Consequently, the service was complete and the view taken by the High Court is incorrect."
8. The above judgment was followed in [PRECEDENT] (supra).
9. A perusal of the impugned order shows that the only alleged failure observed by the trial court in the conduct of the petitioner is that the petitioner did not come into the witness box and even failed to summon the concerned postal officials.
10. In my opinion, it was not for the petitioner to have summoned the concerned postal officials. That observation of the impugned order is erroneous.
11. However, the trial court was justified in reaching the conclusion that the respondent was not served on the material before it. The petitioner has chosen not to lead any evidence whatsoever. It noted that the respondent had entered the witness box and had stood the test of cross-examination. The findings of fact recorded by the trial court are based on material on record and there are no grounds to interfere in the same. The Supreme Court in the case of [PRECEDENT]) had held that the presumption about service based on the report of the refusal from the postal department is a rebuttable presumption. The trial court has concluded that on facts, the respondent has show that summons were not served upon him by the postal authorities.
12. In my opinion, there are no reasons to interfere with the findings of fact recorded by the trial court. It is not for this court to substitute its conclusion based on the evidence led by the parties. Accordingly, there is no merit in the present petition and the same is dismissed.
13. All pending applications, if any, also stand dismissed.
[ENTITY], J.
AUGUST 30, 2016/rb Signed on 22.12.2016