The presumption of service arising from the registered A.D. cover being received back with the endorsement "refused" is rebuttable and can be dislodged by cogent and convincing evidence.

( 1 ) THIS revision petition under section 115 of the Code of Civil Procedure is directed against the order dated 18th February, 1978 passed by Shri S. N. Kapur, Sub-Judge 1st Class Delhi allowing an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure for setting aside ex-parte decree of judicial separation passed under Section 10 of the Hindu Marriage Act, 1955.

( 2 ) LT, Swam Singh Dhindsa (petitioner before me) hereinafter referred to as the husband) filed a petition for judicial separation under Section 10 of the Hindu Marriage Act, 1955 on 7th August, 1975 against Smt. Swinder Kaur (respondent herein) (hereinafter referred to as the wife ). The address of the wife was given as residing C/o Shri Mohinder Singh Warraich, at Dera Dalip Singh Warraich, Post Office Dehra Fateh Singh (near Pehowa) District Kurukshetra (Haryana ). Notice was directed to issue to the wife for last September, 1975 against process fee and registered covers. On 1st September, 1975 the wife was not served and it was directed be served again for 22nd October, 1975, also and it was directed that fresh summons be issued for 16th December, 1975 on deposit of process fee and registered covers. On 16th December, 1975 the proceedings show that the wife was considered to be served by refusal of registered post and the case was fixed for 5th January, 1976 fop ex-parte evidence. The case was ajourned from time to time when ultimately on 20th February, 1976 the statement of the husband was recorded, arguments heard and judgment delivered. The petition of the husband was allowed ex-parte. A decree for judicial separation was granted in favour of the husband and against the wife.

( 3 ) THE wife claims that she received a letter dated 4th July, 1977 under the signature of Shri S. K. Mandal, Commander-At-Arms, Indian Navy, Deputy Director (Discipline and Deputy Provost Marshal (Navy), for Chief of the Naval Staff, informing that according to ths infornution received by them from the husband, he had been granted an ex-parte decree of dissolution of marriage between him and the wife by a decree of divorce and ths wife was required to confirm or deny the same. The wife claims that she was never aware of any proceedings instituted by the husband for the grant of judicial separation or was ever served in any proceedings. She learnt after inspection of the file on 26th July, 1977 that she was proceeded ex-parte on the basis of false report procured by the husband. She filed an application under Order 9 Role 13 and under Section 151 of the Code of Civil Procedure read with Section 5 of the Limitation Act, 1963 praying that ex-parte decree dated 20th February, 1976 be set aside and the petition of the husband be restored to its original member and tried and disposed of according to law.

( 4 ) THE husband contested the application. The two questions for determination before the trial Court were: firstly, whether the wife was not duly served and secondly, if she was not duly served when she came to know of the ex-parte decree for judicial separation. The trial Court recorded the statement of the wife and A. W. 2 S. Mohinder Singh in support of the petition. In rebuttal, the statement of the husband was recorded. After appreciating the oral evidence produced by the parties on the record and considering the presumption under Section 114 (f) of the Evidence Act and Section 27 of the General Clauses Act, the trial Court came to the conclusion that the wife was not duly served. The trial Court also believed the testimony of the wife when she deposed that she came to know of the ex-parte decree on 8th July, 1977 when she received the letter dated 4th July, 1977. The application for setting aside the ex parte decree was held to bewithin time. The ex parte decree was set aside by the impuged order.

( 5 ) SHRI A. B. Saharya, the learned counsel for the husband took me to the pleadings on the record as well as the evidence before the