The evidence produced must be sufficient to prove the service of summons, and the presumption can be rebutted by producing relevant evidence.

1. - This civil miscellaneous appeal is filed by the defendant against the order dated 23.4.2002 whereby the learned Additional Distt. Judge, Kekri, Distt. Ajmer dismissed the application of the defendant filed under Order 9 Rule 13 CPC.

2. The relevant facts in brief are that the plaintiff-respondents filed a civil suit on 21.8.2000 in the court of learned Additional Distt. Judge, Kekri for recovery of a sum of Rs. 51,600/- with the averments that a sum of Rs. 30,000/- was advanced by them to the defendant on 28.3.1997 on interest at the rate of 2% per month and a document was executed. Since the defendant failed to repay, hence, the suit was filed.

3. The suit was decreed ex parte vide judgment dated 18.11.2000.

4. Thereafter, the defendant filed an application under Order 9 Rule 13 CPC read with Section 151 CPC on 17.1.2001 with the averments that his address stated in the plaint and on the envelope containing the summons is not correct and no one came to him for delivery of summons and thus, he was never served. It was also stated that it was the plaintiff who came to inform the defendant about the decree on 9.1.2002 at his address mentioned in this application. The plaintiffs in reply of this application denied the said facts with the plea that the defendant was and is still working at the address as mentioned in the plaint as well as on the envelope containing summons.

5. The trial court recorded evidence and thereafter, vide impugned order dated 23.4.2002 held that the registered envelope was sent on correct address and the defendant refused to receive the same and thus he was properly served.

6. I have heard learned counsel for the parties. As stated hereinabove, the suit was filed on 21.8.2000. The suit was registered on 1.9.2000 and the court ordered to issue summons by registered post for the next date 19.10.2000. The registered envelope containing the summons bears endorsement of the Postman dated 12.9.2000 that the addressee refused to receive the envelope. Thus on 19.10.2000 the trial court ordered to proceed exparte. The PW1 Madan Lal (plaintiff) was examined on 9.11.2000 and the suit was decreed ex parte on 18.11.2000.

7. Defendant Chandra Prakash was examined by the trial court on 14.2.2002. He stated that for last 3-4 years, he is carrying on his business in the name of Sikhwal Furnitures, in front of Shri Ram Chandra Dharam Kanta, Kota Road, Kekri and his address in the plaint as well as in the summons Is Bhinay Road, Shri Ram Rolling Shutter, Kekri. As per the defendant Chandra Prakash, at this address, his younger brother Surya Prakash is carrying on his business in the name of Shri Ram Shutter Udyog. it was also stated by him that he is residing separately from his brother Surya Prakash. He admitted in cross examination that he has got his bank account at the old address mentioned in the plaint and he also lodged one FIR in 1999 against the plaintiffs with his own address as mentioned in the plaint, but thereafter, he started new business at the new address and at the relevant time, when the endorsement of refusal was made by the Postman, he was not working at that address and thus, he never refused to receive the summons. AW2 Surya Prakash and AW3 Jagdish supported the statement of the defendant with regard to his present address. On the other hand, plaintiff Madan Lal stated that the defendant was and is still carrying on his business at the address mentioned in the plaint and his statement was supported by witness Shri Gopal.

8. Learned counsel for the defendant-appellant submitted that at the time of filing the suit and thereafter, the defendant was and is not working at the address given in the plaint and no such inference should have been drawn that the summon was sent at the correct address, to only on account of the address in the old bank account and lodging of the FIR in the year 1999 with old address and even the Postman was not produced by the plaintiff-respondents and thus, no presumption s