Mr. justice A.P. Chowdhri, President— Brief facts leading to this appeal are that in complaint No. C-1633 of 1992 District Forum-II passed a final ex-parte order on 9.2.93. The complainant moved an application u/Section 27 of the C.P. Act. Notice was issued to the respondent. The case of the respondent (opposite party) was that it had not been served with notice in the main complaint and acquired knowledge about the ex-parte order only on receipt of notice in the application u/Section 27. On 29.7.93 the opposite party made an application for setting aside the ex-parte order. On 13.12.93 the said application was dismissed for default. The case of the opposite party with regard to this dismissal is that in fact no date had been given to the opposite party Counsel for consideration of the application and the dismissal was, therefore, unjustified. An application for restoration was made which was again dismissed on 10.3.93. It is against this order that the present appeal has been filed.

2. We have gone through the record and have heard Mr. P.L. Mahindru, respondent.

3. The ex-parte order dated 9.2.93 is based on the presumption that notice sent under certificate of posting must have been delivered to the addressee. There can be no manner of doubt that the presumption of service is a rebuttal one. The categorical stand of the appellant is that it was at no stage served with notice. In a situation like this it becomes the duty of the other side, namely the complainant in this case, to positively prove that valid service had been effected on the opposite party and it is only on such proof that the District Forum would have jurisdiction to proceed ex-parte. Even if certificate is proved and the opposite party is validly proceeded ex-parte, an ex-parte can and ought to be set aside on sufficient cause being shown why the opposite party could not appear on the date fixed by the Forum. From the facts stated herein before it is clear that the application for setting aside itself was dismissed for default. The categorical case of the appellant is that no date had been fixed by the Forum for consideration of the application for setting aside the ex-parte order. No material has been placed on record to show that a date had been fixed with due notice to the applicant. On a careful consideration of the facts and circumstances we are of the view that it would be in the interest of justice if the main Complaint No. C1633 of 1992 is disposed of on merits.

4. We, therefore, set-aside the ex-parte order dated 9.2.93 and direct District Forum-II to permit the opposite party in the said complaint to file its written version and thereafter to proceed to dispose of the said complaint according to law. Both the parties, through their Counsel are directed to appear before the District Forum-II for further proceedings in the light of the above orders on 6th Dec, 95. A copy of this order be sent to both the parties as well as District Forum-II.

Order set aside.