'w l' Appiicant COURT OF CHHATTISGARH AT BILASPUR Hoj-s'bie_ShrLS31iffi R3osaheb_DeshmykiL^L M.A.No.SIQOOi Hariram, aged about 49 years, S/o Dhuniram, Resident of M-396, Despka Colony, Kusmunda, Katghora, District Korba (C.G.) Singh, aged about 47 years, S/o Mohatap Singh, Resident oTPuranl Basti, Korba (C.G.) M'sceSSaneous Appeaf under Order 43 Rule 1 oftheCIVil.Procedure^ode. Present : - Shri M. K. Bhaduri, counsel for fhe appelfant. sed on this 8"' day of Sept Heard on admission. (2) The appellant is aggrieved by an order dated 20-06-2008 passsd bv the 2 AdditionaS District Judge, F.T.C., Korba in Civi! M.J.C.No.24/2007 whereby the appiication fi.led by the appellanVdefendant under Order 9 Rule 13 C.P.C. was dismissed. '^'^'"^te .. . • . . (3) Brief facts are that Civil Suit No.9-8/2007 was instituted against the appeilant'defendantfor recovery of money. A registered notice was sentto the defendant by the Court on the address mentioned in the piaint. Three ©ndorssmentsv/ere made by the postman on the. notice. Firstly, that on 26-06-2006, the addressee was not found, secondiy that on 27-06-2006, the addressee was again not found and lasfly that on 28-06-2006, the addressee rsfused to accept the notice. On the basis of the report endorsed by the postman on the notice regarding refusal by the defendant -2— to accept the notice, the Additiona! District Judge, Korba proceeded ex parfe against the defendant and on 11 -04-2007 passed ex parte judgment and decree in Civii Suit No.S-B/2007. The appeilanVdsfendant moved an application under Order 9 Rule 13 C.P.C. on 18-09-2007 for setting aside the ex parte judgment and decree on the ground that the report of refusal of the summons by him was false and for the first time he had knowledge of the iudament and decree in Civ'il Suit N0.9-B/2007 on 31-08-2007. !n support of the application, a non specific affidavit was filed. (4) The respondenVplaintiff did not fiie rsply to the said application. (5) No evidence was !ed by the appeSianb'defendant in support of the application under Order 9 Rule 13 C.P.C. which was dismissed on the ground that a strong presumption of proper service of notice on the basis of the endorsement mads by the postman on the summons sent by registered post arose against the defendant which was whoily unrebutted since the defendant did not lead any evidence. (6) Shri Maiay Kumar Bhaduri, learned counsel for the appellant piaced rellance on Birdichand v. Smt. Rosy David, reported in 1986 M.P.W.N. Nots No.2 while arguing that since the respondent/plaintlff did not file any reDi"vT& the application undei- Order 9 Rule 13 C.P.C., Ihe Additional District Judge, Korba ought to have a!iowed the appiication. !t •<vas not denied that the appellant/defendant did not iead any evidence or enter the witness box to state on oath that he did not refuse the summons on 28-06-2006. (7) Havingconsidered the submission made by learned counsei for the tppeilant, i am of the considered opinion that this appea! has no merit. It was not denied that theaddress of the appellant/defendant mentioned_on. •3 s? the summons sent through registered post was the same which was mentioned by the appeilant/defendant in the application under Order 9 Ru!e13C.P.C. (8) Section 28 of the Chhattisgarh General Ciauses Act, 1957 reads as 28. Meaning of service by post- Where any Chhattisgarh Acf aufhorises or requires any documeni to be served by post, whether the expressiori "sen/e" or sither of the expressions "give" or "send" or any other expression is used, then unless a different intention appears, the service shali be deemed to be effected by properly addressing, preparing and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be deiivered in the ordinary course of post. (9) Under the above provision, in the facts and circumstances of the case, once the address on which the summons was sent by registered post is admitted to be correct, then on the basis of the postman's report of refusa! of summons by the addressee, there is a strong presumptlon of service of notice, until the contrary is proved. This presumption was not rebutted by the appellant/defendant by entering the witness box or by leading any evidence. The learned Additional District Judge, Korba was thus whoily justified in rejecting the appiication under Order 9 Ruie 13 C.P.C. QRl^e ground mentioned in para 8 ofthe impugned order. In the resu't, the appeai being devoid of any merit is dismissed at tage ofadmission. Sd/- DUip Raosaheb Deshmukh Judge ? Tumane