The burden of proof lies on the person affirming valid service, and the statutory presumption under the Evidence Act must give way to direct provisions under the Civil Procedure Code.

K. Kannan, J.(Oral)

1. The revision is against the order dismissing an application for setting aside an ex parte decree in a suit for specific performance of an agreement alleged to have been executed by the petitioner-defendant in favour of the plaintiff in respect of 16 kanals of agricultural land. The order of dismissal was confirmed in the appellate Court and the revision is against the said order.

2. The contention of the petitioner is that in two contemporaneous agreements brought about within a span of 6 weeks, the plaintiff had filed a suit for specific performance. The first agreement was said to have been executed on 06.09.1989 and yet another suit which is now the subject matter on the basis of another agreement dated 24.10.1989. While the first suit was contested, the second suit was said to have been decreed ex parte. The first suit was dismissed by the trial Court and the appeal filed by the plaintiff had also been dismissed. The contention is that if the petitioner had entered a stout contest and ensured that the plaintiff's suit was dismissed, there was simply no reason why he should have deliberately refused to receive the summons in a contemporaneous suit filed and allowed an ex parte decree to be passed. The ex parte decree was on alleged satisfaction of the Presiding Officer that the defendant had refused to accept the summons and hence, liable to be set ex parte.

3. The learned counsel for the revision petitioner would point out that at all occasions, the plaintiff was taking summons to a wrong address and even the registered notice that had been ordered to be sent along with the court's summons had been taken to the plaintiff's own address as evident from the registration receipt filed in Court. Even the alleged refusal was a manipulated endorsement with an attesting witness who was none other than the numberdar, who was working directly under the plaintiff. He would urge that neither the attesting witness nor even the court bailiff had not been examined to vouch for the endorsement that the defendant had deliberately refused to receive the same.

4. The learned counsel for the respondent would point out with reference to the judgment of the courts below that considered the fact that the plaintiff and his witness had given evidence at the stage of the application to set aside the ex parte decree that they had informed the defendant about the decree that had been passed and had urged him to execute the sale, but he did not do so. He knew very well about the ex parte decree that had been passed. To these versions, there has been no cross-examination and the counsel would argue that the absence of cross-examination, it must be understood as acceptance of what was stated in chief examination. The counsel would also contend that even in a situation where the party would complain that he did not know about the service of summons in suit, if he had otherwise knowledge in the manner attributed to him by the plaintiff's witness, that itself should be taken as a reason to disentitle the petitioner from having the suit set aside. For both the submissions made, the counsel would refer me to the judgments of the Supreme Court expounding to such proposition. The learned counsel would also contend that that the endorsement of service and the Court's satisfaction must be taken to be reflections of official acts to which the presumption under Section 114 of the Evidence Act must be invoked. The counsel would state that the petitioner must have taken upon himself the burden of discharging the presumption by examining the court process server himself and proved his contentions.

5. It is a suit for specific performance in relation to an agricultural land of 16 kanals that was valued of `1 lakh in the year 1989, I have no doubt in my mind that the property must be a very valuable property now. The case has also stood on for more than 2 decades but the application is required to be seen as though the application is take