The burden to rebut the presumption of service of summons is on the plaintiff, and the Court can impose conditions for setting aside an ex parte decree.

( 1 ) THE suit filed by the respondent for recovery of the balance of unpaid money under a registered Assignment Deed was decreed ex parte on the ground that the defendant had refused to take the summons. Immediately thereafter, the defendant moved the Court with an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree, stating that she had not refused any summons, nor it was tendered to her. The trial Court after considering the evidence recorded a finding adverse to the defendant and also observed that the defendant had indirect knowledge about the filing of the suit. The correctness of the rejection of the application is called into question in this appeal.

( 2 ) THE Court below in support of its conclusion has relied upon the following statement at para (8) in the evidence of the defendant:

"about 11 months back from today I received that notice I did not receive that notice. My husband was not in the house and hence I did not receive it. I informed the postman that in the absence of my husband I cannot receive the notice"

"myself, my husband and my children reside in the house. My children had gone to the school when the notice was brought by the postman. "

While dealing with the above Portion of the evidence, the Court observed thus:

"the learned counsel for the Petitioner argued that nothing has been suggested to the petitioner that it was the suit summons which she refused about 11 months Prior to her statement and that no Inference can be drawn by the admission made by the petitioner in para, 8. I find that there is no force in the said contention. It has been admitted by the petitioner that she had knowledge and she was aware that the respondent was about to file a suit and that she had asked for advocates at puttur and Mangalore to keep a watch. Under such circumstances, it cannot be said that the petitioner did not get knowledge that it was the suit summons when the envelope was tendered to her by the postman about 11 months ago. The learned counsel for the petitioner vehemently argued that the respondent should have examined the postman who tendered the envelope. I find that the respondent can very well rely upon the presumption arising under the proviso to Order 5, rule 10 and it was for the petitioner to have examined the postman in order to rebut the presumption. "

( 3 ) NOW the question is whether the Court was justified in holding that there was sufficient proof of service of the summons on the defendant. It is seen therefrom that the Court below has proceeded on the assun4bm that the letter tendered by the postman to the defendant about 8 months earlier, was the summons issued in the suit. That conclusion was reached on the knowledge attributed to the defendant about the pending suit It seems to me that that conclusion. Is untenable. Firstly, there was no basis to hold that that letter tendered by the postman was the registered notice containing the suit summons. The defendant was examined on 30-7-1974. Eleven months earlier, goes back to the month of 30-8-1973, whereas the alleged date of refusal of the summons was on 4-64973. Secondly, the indirect knowledge of the defendant about the pending litigation is irrelevant for the purpose of determining the sufficiency of service, The service may be held to be sufficient only an the proof of delivery A or refusal to receive the summons, there was one other error committed by the Court below. It has put the burden on the defendant to exam-me the postman in order to rebut the presumption available under 0. V, Rule 10. But the law is other way about, When the defendant has examined herself end stated that she had not refused to receive the letter, the prima facie presumption of the proof of service has disappeared, and it would be then for the plaintiff to produce cogent evidence to prove the 'shara' made by the postman. That was also the view taken by this Court in Ambajee Raosubba Rao v. Shakulu Ram hastimal Mootha (

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