1. This is an appeal brought to this court under 0. 43, R. I (d) of the Civil P. C. by the applicant of the Civil Misc. Application No. 58 of 1979 dismissed by the learned Civil Judge (S. D.) Jamnagar, who thereby refused to set aside the ex parte decree passed against him by the learned judge
*Against order passed by U. V. Dave Civil J, (S. D,) Jamnagar D/- 3-12-1980.
in the special civil suit No. 74 of 1973 of this court.
2. The ex parte decree by recourse to 0. 9, R. 6 of the Civil P, C. was passed by the learned trial Judge on 24-10-1974. after finding that the sum-mons to this applicant, the defendant No. 1, should be deemed to have been served under O. 5, R, 21, (a) of the Code, as the envelope by which the summons was despatched was returned bearing the postal endorsement 'refused'. The decree-holder filed the execution application by getting the decree transferred to the competent court at Chandigarh in Punjab and it is the say of the applicant, the appellant herein. that he came to know of the passing of the decree only when the execution process came to be intimated to him.
3. The application was stoutly resisted by the decree-holder, who contended that the defendant No. 1 was rightly deemed to have been duly served with summons.
4. The judgment of the learned Judge amply bears out the fact that the summons was sent at the address of this appellant-applicant. The address given by the appellant-applicant in the application and the address of his given in the suit at which the summons was sent by the court are identical. it is not the say of the appellant-applicant that postal communications addresssed to him at this address do not reach him ordinarily at this address, All that he stated in the application and in the affidavit filed subsequently in support of the application was that the postman had not accosted him and, therefore, there was no occasion for him to refuse the acceptance of the letters sent by the court.
5. It is to be noted that not only the summons was sent by registered Post, but as a matter of abundant caution. a public notice was given in a celebrated paper none other than the 'Nav Bharat Times, Published from Delhi and said to be of wide circulation in Chandigarh as Per the affidavit of the decree-holder filed-in-rejoinder. The 1actum of the suit having been instituted was also advertised in the paper.
6. Mr. Ravani for the appellant-applicant invited my pointed attention to the judgment of the Supreme Court in the case of Puwada Venkateswara Rao v. Chidamana Venkata Aamana, AIR 7976 SC 860 for the purpose of showing that the judgment of the Bombay High Court in the case of Meghji Kanji Patel v, Kundanmal Chamanial Mehtani, AIR 1968 Bom 387 was accorded approval by the Supreme Court, All that the Supreme Court has stated is that 'where a notice sent by a registered post is returned with endorsement as 'refused', It 13 not always necessary to produce the postman who tried to effect service'. The 'above observation of the Supreme Court runs counter to the arguments advanced vigorously by Mr. Ravani before me that the postman must be examined. The Supreme Court, however. made a further observation, which was pressed into service by Mr. Ravani. The Supreme Court observes 'the denial of service by a party may be found to be incorrect from its own admission or conduct' and in this context the judgment of the Bombay High Court in Meghii Kanji's case (supra) was adverted to by the Supreme Court. It is, therefore, safe to conclude that after all, each case is to be decided on its own merits, In the facts before the Bombay High Court in Meghji Kanji's case (supra), there was flat denial on the part of the party to whom was attributed the service. The learned single Judge of the Bombay High Court held that examination of the postman in the light of the categorical denial by the defendant rebutted the presumption that would be available on a question of fact by recourse to S. 114 of the Evidence Act, Bombay High Court observed case. cannot be elevated to the a proposition of law that party sought to be served denies the a postman with the notice of summons said service, examination of must follow as a matter of course.
7. The Full Bench of the Gujarat High Court had an occasion to examine this question in the case of Memon Adambhai Haji Ismail v. Bhaiya Ramdas Badiudas, AIR 1975 Gui 54 and this court has ruled that 'on the basis of a mere endorsement of refusal found on the returned registered envelope without being substantiated by any evidence of the postal peon who went to deliver the letter. the statutory rebuttable presumption of fact that addressee had in fact refused to accept the delivery of -the letter can be raised under the provisions of S. 114 of the Evidence Act'.
So to the extent Mr. Ravani's argument rested on the observation of the learned single judge of the Bombay High Court in Meghji Kanji's case (AIR 1968 Bom 3871 (supra) the Full Bench Judgment is a clinching answer.
8.Whether a summons has been served or could be presumed to have been served or not is essentially a question of fact, A presumption u/s, 114 of the Evi, Act is a matter of court's discretion, When the learned Judge, who was required to deal with this question of fact, was pleased to rely on S, 114 of the Evi. Act, he in the exercise of his powers of appreciation of evidentiary material, came to a factual conclusion, The appellate court has no doubt power to reassess the evidence and arrive at its own conclusion, but simply because the appellate court can 'possibly take the other view, it is not a ground for the appellate court to alter the finding of the court below, in the facts and circumstances of the case and particularly the circumstance that the address given by this appellant-applicant in the present application under 0, 9. R, 13 of the Code is the very address at which summons was issued by the court, I see no difficulty in drawing the inference that the envelope containing summons of the court was tendered to this applicant and he had declined to accept the same. What was the address on the envelope is not actually before me, but, Mr. D. M, Shah for the original plaintiff showed me the copy of that cover and also the address of the defendant No. 1 given in the plaint and it is in these 'circumstances that I conclude that the address on the envelope containing the summons of the court was the very address, which the applicant has given in his application under 0. 9, R. 13 of the Code.
9. In the facts and circumstances of this case, I see no merit in this appeal from order, which is hereby dismissed with no order as to costs.
10. In view of the dismissal of this appeal from order no further orders are, required to be passed on the Civil application. which also stands disposed of. Stay vacated.
11. Appeal dismissed.