Non-appearance on the date fixed due to non-service of summons in a suit is a good cause for setting aside an ex parte order under Order 9 Rule 7 of the Code of Civil Procedure.

A.L.Bahri, J.

1. This revision petition is directed against the order dated August 24, 1990 passed by the Senior Subordinate Judge, Sonepat, rejecting application for setting aside ex parte order dated June 8, 1983, whereby Bijender Singh, one of the defendants in the suit, was proceeded against ex parte.

2. A suit for pre-emption was filed against Bijender Singh and others The address of Bijender Singh was given of village Juan, Tehsil and District Sonspat. The report was that he was not residing in the village On another set of summons sent to Bijender Singh at his Delhi address, the report was of refusal. Thereafter, service was effected by proclamation by beat of drum in the village and for non-appearance of Bijender Singh on June 8, 1988 he was ordered to be proceeded against ex-parte.

3. In the application for setting aside the ex parte order, it was asserted by Bijender Singh that he was resident of Delhi where he was in service and he never refused any summons. He was not duly served. on coming to know of tine pendency of the suit he moved the application. This application was contested and the following issues were framed :-

(1) Whether order dated 13.3.1988 (in fact 8.6.1988) is liable to be set aside as alleged ? PA

(2) Relief.

4. After both the parties adduced evidence, the impugned order was passed.

5. The very fact that the plaintiffs took summons in the name of Bijender Singh giving Delhi address shows that at the relevant time he was not residing in the village, but was is Dalai. Thus, subsequent order obtained from the Court for his substitutive service by proclamation by beat of drums in the Tillage was against facts. Such proclamation cannot in any manner be treated as due service on Bijender Singh,

6. AW-3 Bijender Singh has stated that for the last eight years, he has been residing in Delhi. Earlier he was a student and thereafter he is in service. No doubt, during cross-examination, it was put to him that lie had not brought any documentary evidence regarding his residence and he had replied that he would produce the same but no documents were produced by him. As already stated above, since it was the case of plaintiffs also that Bijender Singh was residing in Delhi, that summons ware obtained in bis name, it is not significant now that he did not produce his ration-card or other documents indicating his residence there. The report of refusal was not proved when parties were called upon to lead evidence on the issues framed. The factum of refusal was disputed audit was incur) bent upon the plaintiffs to produce Process .Server who had presented summons to Bijender Singh and he had refused the same. In the absence of such evidence, his report per se being on the record could not be treated as evidence to hold that in fact he had refused the acceptance of summons. In this state of affairs there .was no other conclusion to hold that Bijinder Singh was not duly served in the suit.

7. It has been asserted on behalf of the respondents that the petitioner being brother of other defendants, knowledge could be attributed to him about the pendency of the suit In a given set of circumstances, such a presumption may be raised but in the present case I do not find that any other circumstances are brought on record to raise such a presumption more so when other defendants are not residing in Delhi. In the impugned order, the trial Court placed its reliance on Ex Rl the application moved before the revenue authorities on behalf of Bijender Singh giving his village address However, much importance cannot be attached to this fact and the evidence of Shri R. S. Handa, Advocate, (RW-2) that he had drafted the application for Bijender Singh. No doubt, Bijender Singh is originally resident of village Juan where he and his brothers have property and if in the matter of partition proceedings relating to land between the brothers, village address was given, it cannot have any effect on the decision of the present applica