IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.538 of 2006 Abhay Kumar Sinha & Ors Versus Upendra Kumar Sinha & Ors ---------------------------------- 10 29-7-2011 Heard the learned counsel appearing on behalf of the petitioners. No body appears on behalf of the opposite parties. This revision application has been filed against the order dated 19-1-2006 by which the learned Munsif has allowed the petition filed by the opposite party-defendants under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree passed in T.S.No. 138 of 1988. The undisputed facts, as appear from the impugned order, are that there was a Title Suit No. 138 of 1988 in which the present revision petitioners were the plaintiffs and the opposite parties were the defendants. The said Title Suit No. 138 of 1988 had culminated in an ex- parte decree on 23-5-1992. The opposite parties filed Miscellaneous Case No. 11 of 1992 under Order 9 Rule 13 of the Code of Civil Procedure praying for setting aside the said ex-parte decree on the ground that the summons of T.S.No. 138 of 1988 had not been served upon the 2 defendants and there had been Bala Bala service report showing service of summons on the defendants. The Miscellaneous Case No. 11 of 1992 , as above, was heard by the learned court below after the parties adduced evidence in support of their rival cases. After considering the evidence , as led by the parties and hearing the submissions, the learned court below has come to the finding that summons in T.S.No. 138 of 1988 had not been validly servered on the defendants and consequently the learned court below allowed Miscellaneous Case No. 11 of 1992 and set aside the ex-parte decree. The learned counsel appearing on behalf of the petitioners has submitted that the learned court below has committed error of law in placing the burden of proof upon the petitioner-plaintiffs to establish that the summons had been validly served upon the defendants. The contention of the learned counsel for the petitioners is that since the defendants had come out with a case of non-service of summons upon them, it was for them to establish the said fact regarding non-service. From a perusal of the impugned order, it appears that both the parties have led evidence in Miscellaneous 3 Case No. 11 of 1992 to corroborate their rival contentions. Morever, the submission made by the learned counsel for the petitioners does not have any legal basis. The learned court below has recorded a finding of fact regarding non- service of summons upon the defendants on the basis of evidence and materials on record. I do not find any illegality or jurisdictional error in the impugned order. The revision application is, accordingly, dismissed. roy ( V. Nath, J.)