JUDGMENT :

1. Heard the parties.

2. By the impugned order dated 02.03.2016 passed in Civil Misc. Case No.52/2010, the learned trial court refused to set aside ex-parte decree dated 09.09.2008 passed in Civil Original Suit No.13/2006.

3. In the application under Order 9 Rule 13 CPC, the case of the appellant was that notice of the suit was never served on the appellant. The respondents relied upon the fact that service of notice on the appellant was effected under Order 5 Rule 15 CPC as notice of the appellant was served on his brother-Narendra Kumar.

Order 5 Rule 15 CPC reads as follows:-

“Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons is residing with him.

Explanation. -A servant is not a member of the family within the meaning of this rule.”

4. Thus, one of the important requirements to fulfill the requirement of Order 5 Rule 15 CPC is that in absence of the addressee to the notice, the same may be served upon any adult member of the family, who is residing with him.

The case of the appellant is that the appellant was not residing with his brother since last fifteen years as he was not pulling well with his brother, therefore, service was not properly effected. The appellant could know about ex-parte decree only on process of attachment in execution of the ex-parte decree.

5. Learned counsel for the appellant submits that during inquiry proceedings under Order 9 Rule 13 CPC, two witnesses, including the appellant were examined and both stated that the appellant was not residing at Falna along with his brother-Narendra Kumar since last more than twelve to thirteen years as he was not pulling well with his brother. The respondent produced only one witness, who is process server and process server is hearsay on his statement that the appellant was residing with his brother as the process server heard this fact from Narendra Kumar, who was not produced by the respondent in Court, therefore, statement of the sole witness of the respondent is hearsay evidence.

6. The impugned order would reveal that the court below doubted the statement of the appellant during inquiry for the reason that the appellant had not stated about his present address rather, in a wider term the appellant had stated that he is residing in Surat. However, no cross-examination was made to the appellant regarding his actual place of residence at Surat.

7. Learned Court below further noticed that the appellant admitted that the house and shop at Falna was joint family property and appellant had also a share in the same and in the past, he was running his business along with his brother.

For that reason only, the claim of the appellant should not have been disbelieved that subsequently his relation with his brother was not cool, therefore, he left the business at Falna and settled at Surat.

8. Learned counsel for the respondent has relied on the aforesaid material to oppose the prayer of the appellant and asserts that it is the duty of the appellant to prove by cogent evidence that he had actually left the place at Falna and was also bound to prove his actual place of residence at Surat as well as supporting document that the appellant was doing some job at Surat.

9. The law is well settled that the civil dispute is decided on the basis of preponderance of probabilities and not on proof of a case beyond reasonable doubt. It was duty of the plaintiff and the process server to prove the fact to the satisfaction of the Court that service of summons on the appellant was properly made. If Narendra Kumar would have appeared in the witness box and stated that he was still residing with the appellant at the same house, the matter would have been different. Furthermore, no other witness appeared in the proceeding under Order 9 Rule 13