S. Barman, J.
1. In this second appeal, the plaintiff Raghunath Pani is the appellant (hereinafter referred to as the alleged tenant) from a reversing decision of the learned Subordinate Judge, Puri, whereby he reversed a decision of the learned Munsif, Puri and dSsmissed the tenant's suit for setting aside an ex parte decree passed against him on the ground of alleged fraud by suppression of the summons in a rent suit filed by the defendant-respondent Radhakanta Deb, Bija Marfatdar Mahant Biswambhar Das Chela of late Madhab Das of Puri Town (hereinafter referred to as the alleged landlord).
2. The matter arose in these circumstances: In 1948-49 the landlord filed a case for appraisement of produce under Section 79 of the Orissa Tenancy Act being O.T.A. Misc. Case No. 188/- 48-49 which on January 4, 1949 was decided against the landlord with the observation by the Deputy Collector that there seems to be some dispute as regards the alleged Bhag transaction of the land in suit; that the landlord may seek remedy in the proper court claiming damage or mesne profits from the tenant but the proceedings under Section 79 of the Oissa Tenancy Act were not maintainable (Ext. 2).
The appeal from the said order filed by the landlord was also dismissed on April 28, by the Additional District Magistrate, Puri, finding that there is nothing to show that the said Raghunath Pani (alleged to be the tenant) was a Bhagchasi tenant under the said Radhakanta Deb through Mohant Biswambar Das (claiming to be the landlord) and that no evidence of any kind had been adduced by the alleged landlord on his behalf (Ext. 2a). Thereafter the said landlord filed in 1919 a rent suit being Rent Suit No. 5120 of 1948-49 which also was dismissed on 18-12-1951. On 12-4-1950 the landlord filed another rent suit being Rent Suit No. 3064 of 1950-51 on which the said ex parte decree was. passed on 11-6-1951 against the tenant.
Thereafter there was an execution case being Execution Case No. 699 of 1951-52 which was dismissed on 18-4-1952 (Ext. D) on the finding that the decree of the landlord decree-holder was not binding on the tenant judgment-debtor on theground that the relationship of landlord and thetenant between the parties had not been established (Ext D). On appeal by the landlord the said order passed in the said execution case treating the decree as a nullity was vacated (Ext. D-1). Thereafter a petition was filed by the tenant for setting aside the said ex parte decree under Order 9, Rule 13 Civil Procedure Code on 7-11-1953 which was dismissed on 8-3-1954 (Ext. F).
Then an 17-3-1954 the present suit was filed by the tenant for setting aside the said ex parte decree on the ground of fraud as alleged. The trialCourt decreed the tenant's suit finding that therewas fraud and the ex parte decree in the rent suitwas set aside. In the landlord's appeal before the lower appellate Court, the trial Court's decision was reversed, the appeal allowed, and the suit was dismissed on the finding that there was no fraud andthe ex parte decree in the rent suit was accordinglyto stand. Hence this second appeal by the tenant.
3. Admittedly, there is a background in thecase which was the genesis of the present litigationwith which, though this Court is not directly concerned for deciding this appeal, yet on the question of alleged fraud, the background has some bearing indicative of the motive behind the scheme.
The landlord is a Hindu deity Radhakanta Deb represented by Biswambar Das, the Marfatdar Mahant. It is alleged that the tenant claims to be themarfatdar himself. Thus, there appear to be certain rival claims to the marfatdari right in respectof the deity. In reply to the alleged tenant's contention that there is no allged relationship of landlord and tenant, the said alleged landlord relies on Ex. G dated 4-8-1950, Endowment Commissioner's Certificate that the said Biswambar Das is the hereditary trustee under Section 64 of the Orissa Hindu Religious Endowments Act, 1939 and thus claims tobe in possession as such hereditary trustee.
The landlord also relied on Ext. A a certifiedcopy of the petition in O. S. No. 67 of 1951 on the file of the Subordinate Judge of Puri, filed by thesaid tenant Raghunath Pani for adding him as a party under Order 1, Rule 10 Civil Procedure Code-- claiming that he is the marfatdar. Thus it is clear that the relationship between the parties has not been at all happy for several years prior to thepresent litigation.
4. Mr. P. C. Chatterji, learned counsel forthe tenant, contended that the onus was wrongly put on him by the lower appellate Court to prove the alleged fraud under issue No. 3 raised in thesuit, namely;
'Whether the decree in R. S. No. 3064 of 1950-51 is obtained by fraud by fraudulent suppression of summons?'
On this the plaintiff-tenant himself as P.W. 1 gaveevidence and was the only witness. The learned lower appellate Court, while reversing the finding of the trial Court, took the view that it cannot beheld in the present case that the plaintiff (tenant) has succeeded in discharging the burden of proving affirmatively that he was never in fact served withsummons.
It appears from the judgment of the trial Court that the service return was not found in record andtherefore there was no material to know the method . and manner of service. That apart, the order-sheet (Ex. J) does not show the mode or how the summons was served nor does it show that the landlord (plaintiff in the rent suit) has proved service at all. In fact, there is no evidence as to the actual date on which the summons is alleged to have been served On the tenant-defendant in the rent suit who is the plaintiff in the present suit for setting aside the ex parte decree as aforesaid.
The circumstance, -- that the relationship of landlord and tenant was found to have not been established in the said appraisement proceedings under Section 79 of the Orissa Tenancy Act hereinbefore mentioned, -- is alleged to raise a suspicion as to the genuineness of the landlord defendant's stand in the case, Furthermore, it is not a case where the tenant was sleeping over the litigation relating to the subject-matter of the suit. It dearly appears that he had throughout been fighting against the landlord defendant in the previous suits as herein-before mentioned.
5. As to the service of summons in the landlord's rent suit, the onus was certainly upon the landlord to prove that the tenant was served with the summons in order to be entitled to a decree. In this case the landlord defendant could certainly have examined the peon. The non-examination of the peon to prove service is also a fact which has to be seriously taken note of in a case for setting aside the ex parte decree on the ground of fraud by fraudulent suppression of summons.
As to the alleged presumption of regularity of summons it is not the law that merely stating that the summons was served would lead to such presumption; there must be sufficient proof of the actual service of the summons in order to entitle the party to the presumption as to regularity of such service proved to have been actually made. In Shyamananda Mohapatra v. Gopal Sahu, 20 Cut LT 436: (AIR 1954 Orissa 222) it was held that the presumption under Section 114 of the Evidence Act can only extend to the regularity or otherwise of the official act but not to the performance of the act itself.
6. Mr. S. Misra, learned counsel for the landlord! defendant-respondent herein, contended that mere non-service is not sufficient to prove fraud for the purpose of setting aside the ex parte decree, Undoubtedly that is so; but in the present case, having regard to the surrounding carcumstances and the background of the litigation between the parties over their respective rival claim to the Marfatdari right in respect of the said deity as discussed above, I am satisfied that there appears to be sufficient proof of the alleged motive for obtaining an ex parte decree by fraudulent suppression of summons.
In any event the fact of non-service of summons and the absence of any proof of the alleged service of summons, -- considered in the background of the case, -- is sufficient ground, in my opinion, for setting aside the ex parte decree passed in the circumstances as aforesaid. It is clear that the learned lower appellate Court did not take into consideration this aspect of the case which the trial court had fully gone into and discussed In his judgment In my opinion the learned lower appellate court should not have disturbed the finding ofthe trial Court based on the evidence adduced before him.
7. Thus the judgment of the lower appellate Court cannot be maintained. The result, therefore, is that the judgment of the lower appellate Court is set aside; the decision of the trial Court is restored and the plaintiff tenant's suit is decreed with costs; the decree in Rent Suit No. 3064 of 1950-51 is set aside. The appeal is accordingly allowed with costs throughout.