IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 13.5.2009 S.B. CIVIL REVISION PETITION NO.45/2009 M/s. Kota Stone Syndicate Vs. Bherulal HON'BLE MR. JUSTICE DALIP SINGH Shri S.C. Mittal, for the petitioner. Heard learned counsel for the petitioner. This revision petition is directed against the order dated 8.4.2009 by which the learned trial court has allowed the application filed by the defendant under Order 9 Rule 13 CPC and set aside the exparte decree dated 3.8.2006. I have heard learned counsel for the petitioner and perused the impugned order. The learned counsel for the petitioner has contended that the learned court below has erred in holding that there was sufficient cause for condonation of delay in moving the application under Section 5 of the Limitation Act, inasmuch as the defendant had put in appearance before the learned executing court when the decree was sent for execution to the court at Bhilwara on 30.5.2008 and the present application has been filed on 19.3.2009 along with an application for condonation of delay under Section 5 of the Limitation Act. The learned trial court has held that the summons were sent by both, the normal process and by registered post as per the order-sheet dated 19.1.2006 and were due to return on 2.3.2006. On the said date the summons as well as the notices sent by registered post did not return and the case was fixed on 23.3.2006. On 23.3.2006 as per the impugned order the registered letter returned with the endorsement of refusal and the order to proceed exparte against the defendant was passed. It is however not clear what was the report on the summons sent by the court through the process server. Learned trial court has held that the court below erred in holding the proceedings exparte against the petitioner defendant on the basis of the aforesaid report on the registered letter. The court below held that there was no order passed by the court for issuance of the summons by registered post and therefore the service on the defendant based upon the endorsement of refusal on the registered letter by the postman can not be said to be sufficient service so as to order exparte proceedings against the defendant. I have heard learned counsel and perused the impugned order. In the facts and circumstances of the present case the learned trial court has exercise its discretion in favour of the petitioner and set aside the exparte decree dated 3.5.2006 of payment of cost of Rs.1000/-. So far as the order passed by the learned trial court holding that the service had been considered sufficient on account of refusal is concerned, suffice it to say that the plaintiff is order to show that the service by refusal was sufficient and in order to support the exparte order against the defendant was required to examine the Postman who had made the aforesaid endorsement to prove that the defendant had in fact refused to accept the registered letter on being offend to him. In the instant case the plaintiff petitioner has not proved that the registered letter was offered to the defendant who refused to accept the same. Thus the plaintiff petitioner failed to discharge the burden to show sufficient service. In the facts and circumstances since the trial court has exercised its discretion in favour of the defendant with a view to afford an opportunity to the defendant to contest the suit on merits, I find no jurisdictional error so as to interfere in the revisional jurisdiction. This revision petition as well as the stay application are accordingly dismissed summarily. (DALIP SINGH),J. Ramchandrkhatri,PS