K .! :. s ,t..!»t.aM i!iw HflttWtma Mi sSSSiSi SH!Wa>t<w l.SS : ^ InBtoBenct IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR. CIVIL REVISION N0. OF2011 APPLICANT ^M .'••' cSynrf \ e NON-APPLICANTS ^^Trilochan Singh S/o Jeet Singh, aged about 49 years, Business, R/o at present village Sarangarh, Tahsil Sarangarh, District -Raigarh C.G. ( Plaintiff/non-applicant no.l) VERSUS 1. Labhoram S/o Nakchhed Satnami, aged about 60 years, Agriculturist, R/o Village Chanamuda, Post Chantipali, Police Station Kosir, Tahsil Sarangarh, District Raigarh C.G. ( Defendant no. l/ Applicant) 2^State ofC.G. through the Collector, Raigarh, District Raigarh C.G. (Defendant ho. 2/non-a.pplicant no. 2) CIVIL REVISION UNDER SECTION 115 OF THE CIVL PROCEDURE CODE. 1908 HIGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra APPLICANT RESPONDENTS Civil Revision No. 61/2011 : Trilochan Singh Versus : Labhoram and another Appearance: ; Shri Rakesh Pandey, counsel for the applicant. Shri Sanjeev Agrawal, Panel Lawyer for the State/respondent No.2. . cmL REVISION UNDER SECTION 115 OF THE CIVIL PROCEDLTW CODE. 1908 ORAL ORDER (13.05.2011) -r" Heard on admission. (2) The court below has allowed the defendants application under Order 9 Rule 13 ofCPC and has set aside tfae ex-parte judgment and decree dated 30/08/2008. (3) Leamed counsel for the applicant would submit that the burden to prove that the notice issued by the trialcourt was not served upon the defendant was on the paxty i.e. 'the defendant who has challenged the endorsement made by tjie process server, however without examining the prbcess server the learned court below has illegally held that the process sen'er made wrong endorsement regardini refusal by the defendant to accept notice. (4) This court has perused the document annexed with the appeal \ and the impugned order. (5) The trial court directed issuance ofnotiee on 13/11/2007 and fixed the case for hearing on 20 December, 2007 and on tfae said date the summons issued to the defendant was i-etumed alona with endorsement that the defendant has refased to accept the notice. The trial court thereafter declared the defendant ex-parte and eventually the ex-partejudgment and decree wasjpassed on 30 August 2008. (6) Application under Order 9 Rule 13 of CPC was submitted on 13 October 2008 as has been mentioned in para 14 ofthe impugned order. In the application under Order 9 Rule 13 ofCPC the defendant categoricaliy stated that the plaintifF and the process serv'er have colluded, therefore the endorsement regarding refusal to accept notice has been made by the process server in a concocted manner and that the defendant has never refused to accept notice and that infact the process Server has never visited the house of the defendant to serve notice. , (7) Leamed trial court has observed that in the notice, signature of witaesses haye not been taken and fhe process sen'er has menrioned in the notice that the mtoesses available on the spot refused to put tfaeir signature. . <- (8) .It appears that name of the witnesses have also not been mentioned in the notice in support of the endorsement made by the process server. - ; (9) Once there is a statement by tiie defendant that he has never \ ' '" ' . reftised to accept notice and when none ofthe witnesses have signed ^,1. ^^ s .P .? ^i^-^' 3 over the endorsement made by the process server, the burden equally lay on the petitioner to have examined the process server to prove that infact he has visited house of the defendant and the refusal has been made by him. In the absence of such endorsement having been supported by taking signature of any witnesses, the findings recorded by the court below that in Ae facts and circumstances of the case endorsement regarding refusal to accept'' notice is not believable and that the ex-parte judgment and decree deserves to be set aside, does not suffer from any illegality. (10) The trial court has not committed any illegality or material irregularity while allowing the defendants application under Order 9 Rule 13 ofCPC. (11) There is no substance in this revision, which fails and is hereby dismissed. Sd/- Prashant Kumar Mishra Judge oy~ ;S^^^^@'^.''^S?; mss^ssss'^ 'S^S^iSfs^smSs