JUDGMENT

Dr. Arijit Pasayat, J.—Leave granted.

2. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Allahabad High Court dismissing the appeal filed by the appellant. In the said appeal the order passed by 11th Additional District & Sessions Judge, Varanasi, rejecting the application filed by the appellant for restoration of the appeal in terms of Order XLI Rule 21 of the Code of Civil Procedure, 1908 (for short ‘CPC’) was rejected.

3. Background facts in a nutshell are as follows:

Respondent No.1-Munna Lal instituted a suit for specific performance of the contract dated 6th March, 1992. The agreement was allegedly executed by Smt. Krishna Devi, mother of the appellant and respondent no.2 who were the appellants before the High Court. The said Smt. Krishna Devi expired during the pendency of the suit before the Trial Court. According to the plaintiff, out of the total sale consideration of Rupees one lakh, Rs.25,000/- was given on 2nd March, 1992 and another sum of Rs.15,000/- was given on 6th March, 1992. It was stipulated in the agreement that the sale deed shall be executed by the Vendor after she obtained permission from the authorities under the Urban Land Ceiling Act, 1976 (in short ‘ULC Act’). As Vendor failed to execute the sale deed the suit for specific performance was filed. The suit was dismissed by the Trial Court on 3rd August, 2002. The judgment and decree were challenged by respondent no.1 by filing Civil Appeal no.109/2002. The said appeal was allowed as ex-parte on 11th July, 2003 by the First Appellate Court. An application was filed by the present appellant and the respondent no.2 to set aside the ex-parte decree passed by the Courts below. The said application was filed in terms of Order XLI Rule 21 CPC which was rejected by the First Appellate Court.

4. The only ground which was urged in support of the appeal/application as the case may be before the First Appellate Court and the High Court was that there was no service of notice through process server or by registered post. It was contended that the information regarding decision of the appeal came to knowledge of the appellant before the High Court on 28th July, 2003 when the notice of caveat application filed before the High Court by respondent no.1 was received. It was averred that the reports of the process server were not correct. The notice by registered post was not served. In fact, there was no refusal as was made out by the plaintiff-respondent no.1. The postman who was examined clearly stated that there was no refusal by the appellant and the present respondent no.2.

5. The First Appellate Court analysed the factual position and placing reliance on the decision of this Court in State of M.P. v. Hiralal and Ors. (1996 (7) SCC 523), held that there was valid service of the notice sent by registered post. Further the evidence of the process server clearly established that notice has been served. The High Court dismissed the appeal finding that there was valid service of the notice regarding hearing of the appeal before First Appellate Court.

6. In support of the appeal, learned counsel for the appellant submitted that the First Appellate Court and the High Court clearly proceeded on erroneous presumption that the appellant and respondent no.2 had refused to receive the notice. The postman’s evidence was not to the effect of any refusal. In fact, the evidence clearly established that at no point of time postman met the appellant. The High Court relied on decision which related to refusal and those decisions were not clearly applicable to the facts of the present case.

7. The learned counsel for the appellant further submitted that the decision in Hiralal’s case (supra) has no application to a case where there is no definite material of refusal. The decision in the said case was on the basis of the office report indicating that the noticee was avoiding to receive the notice. In that context this C