Civil Revision No. 3618 of 2009 O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3618 of 2009 (O&M) Date of decision: 17.08.2010 Mohan Lal ....Petitioner Versus Leela Dhar and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Kulbhushan Sharma, Advocate, for the petitioner. Mr. N.K. Shekhawat, Advocate, for respondent No.1. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 2.3.2009, passed by the learned Civil Judge (Senior Division), Rewari, vide which the application moved by the petitioner for setting aside the ex parte proceedings, stands declined. The petitioner was impleaded as defendant No.1 in the suit filed by plaintiff for specific performance of the agreement to sell. Defendants No.2 and 3 appeared and contested the case. It was reported by the process server, that the petitioner/defendant No.1 had directed his daughter-in-law not to accept any summons from the Court. In view of the report submitted by the process server, the learned trial Court felt satisfied that it was not possible to serve the petitioner/defendant No.1 by ordinary process, as he was intentionally evading service. The learned Court ordered service by way of Civil Revision No. 3618 of 2009 O&M) -2- substituted service by exercising powers under Order 5 Rule 20 of the Code of Civil Procedure. The notice for service was directed to be published in the newspaper 'Bharat Desh Hamara'. The petitioner on coming to know about the pendency of the proceedings against him, moved an application for setting aside the ex parte proceedings by pleading therein, that the petitioner was not served in the case, as the newspaper 'Bharat Desh Hamara' did not have any circulation in the area of his residence, at New Delhi. The application was opposed by the plaintiff/respondent No.1 by pleading, that the petitioner had the knowledge of the proceedings, therefore, he could not challenge the ex parte proceedings merely on the ground of irregularities in service. Stand was also taken, that the petitioner intentionally did not accept the notice as he had directed his daughter-in-law not to accept the process from the Court. The learned trial Court dismissed the application on the presumption that the ex parte proceedings could not be set aside merely on account of irregularities in service, in case, the party had knowledge of the proceedings. It is well settled law, that though initial burden is on the petitioner to prove the non-service, but the moment he deposes that he was not served, the burden shifts to the respondent to prove due service. In this case the plaintiff neither examined the process server nor any witness to prove, that it was under the directions of the petitioner, that his daughter-in-law was not accepting the summons. No evidence was led to prove due service on the petitioner. The contention of the learned counsel for the respondent, that Civil Revision No. 3618 of 2009 O&M) -3- 'Bharat Desh Hamara' has wide circulation, cannot be prima facie accepted, because the petitioner was living at New Delhi, and there is no evidence on record, showing, that the copy of the publication was sent at the address given by the petitioner, and whether it was received by him or not, as the publication copy is required to be sent to the person named in the publication. There is absolutely no evidence to show that the petitioner was served. The presumption drawn by the learned trial Court that the petitioner had knowledge of the proceedings, therefore, the irregularities in service was to be ignored, cannot be sustained, as this proposition can be drawn in application for setting aside of ex parte decree, in view of proviso to Order 9 Rule 13 of the Code of Civil Procedure and not to ex parte proceedings. For the reasons stated, this revision petition is allowed, the impugned order is set aside. The application moved by the petitioner for setting aside the ex parte proceedings is allowed. No costs. (Vinod K. Sharma) Judge August 17, 2010 R.S.