IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1291 of 2006 RAM PRIT RAI & ORS Versus SRI RAM NARESH SINGH & ORS ----------- 3. 7.11.2008 Heard counsel for the petitioners. The only aspect which needs to be gone into in this civil revision application is as to whether the impugned order passed by the lower appellate court allowing the application of the defendant- opposite parties under Order 9 Rule 13 C.P.C. suffers from any jurisdictional error? Counsel for the petitioners has produced before this Court the entire order sheet of the suit from which it would appear that when summons were sent through the process of the court, the same had returned unserved. The summons under registered cover has also not been served but then as A/D (Acknowledgement Due) was not received within a period of 30 days service of summons was deemed to have been served validly. Ultimately when the defendants have filed their application under Order 9 Rule 13 C.P.C. they came out with a specific case that the summons were not served to them and 2 they had also adduced evidence both oral and documentary. It has also to be noted here that the petitioners did not adduce any evidence and all important witness on whose evidence the matter could have been turned by the petitioners i.e. evidence of postal peon was also not brought on record by the petitioners. Unfortunately the court which had passed the decree treating the petitioners to be present and on contest did not look into all this vital aspect and had mechanically dismissed the prayer for restoration of the suit. The lower appellate court thereafter had analyzed the matter and it came to the conclusion that there was no evidence to show that the summons were served on the defendants no. 1 and 2. It has also been noted that the court below had acted mechanically/ in a perfunctory manner in recording in the decree to have been passed on contest though the admitted position was that defendants no. 1 and 2 had never appeared in the suit and in fact the suit had proceeded ex-parte against them. Counsel for the petitioners, 3 however, has placed his reliance on a judgment of the Apex Court in the case of Basant Singh & anor. Vs. Roman Catholic Mission, reported in 2002(7) Supreme 62, to contend that if the summons were issued under registered cover and A/D was not received within a period of 30 days the presumption in law would be that the summons were validly served. This Court is not in a position to accept the submission of the counsel for the petitioners for the simple reason that in the case of Basant Singh (supra) there was no dispute as with regard to the service of notice through the process server. The additional mode of service through registered cover became the only bone of contention, inasmuch as the plea taken therein was that the registered cover was not served on non-appearing defendants. It was in that context that when such plea of defendants got negatived by the trial court, lower appellate court and the High Court, the Apex Court had found that if the defendants wanted to get advantage of non- service of registered notice they were 4 required to produce the postal peon for his deposition. In the present case when there is a direct evidence on record to show that even the process server could not affect the service of notice on the defendant- opposite parties and the notices under registered cover were allegedly not served as claimed by them in course of proceedings under Order 9 Rule 13, it was essential for the petitioners to negate this aspect by producing the postal peon. That having been not done, the petitioners who had filed their affidavit on 2.5.1989 claiming and ascertaining valid service of summons on defendants no. 1 and 2 must be now held to be bound by their own lapse/ latch. It is to be noted that this affidavit dated 2.5.1989 was filed when the court wanted the petitioners (plaintiffs) to assert on oath that the summons were properly served on them. As such, when the issue came it was for the petitioners to defend their affidavit on the basis of which the court below has treated the service of notice to be valid on them. That having been not done and in 5 fact the postal peon having been not examined, this Court for the reasons indicated in the order of the lower appellate court would find no jurisdictional error so as to warrant interference under section 115 C.P.C. This application without being merit is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/