The main legal point established in the judgment is that the question of due service of summons is a question of fact, and intentional avoidance of service can lead to an ex parte decree.

( 1 ) S. C. C. Suit No. 62 of 1994 for ejectmenl from the shop in dispute and recovery of arrears of rent was filed by respondent No. 3 against the petitioner. Notice was sent to the petitioner by registered post, which was served by refusal. The service was held to be sufficient and the suit was decreed ex parte on 17. 8. 1996 vide Annexure-2 to the petition.

( 2 ) THE petitioner moved an application under Order IX. Rule 13, C. P. C. , Annexure-3 to the petition, for setting aside ex parte decree. He alleged that no notice was ever tendered to him nor he refused to accept the same. He came to know regarding the decree when the notice regarding the execution of the decree was received. The compliance of Section 17 of Provincial Small cause Courts was also made by him. The application was opposed.

( 3 ) THE application for restoration was rejected by the Judge. Small Causes Court, Muzaffarnagar on 2. 1. 1998, Annexure-10 to the petition. Against that order, the petitioner preferred S. C. C. Revision No. 6 of 1998, which was also dismissed on 15. 2. 2001. Annexure-12 to the petition, by respondent No. 1.

( 4 ) HAVING failed in getting the relief in both the courts below, the petitioner has preferred this petition invoking extra-ordinary jurisdiction of this Court, under Article 226 of Constitution of india.

( 5 ) I have heard Sri B. P. Agarwai, learned counsel for the petitioner and Sri P. K. Jain, learned counsel for the respondent No. 3.

( 6 ) IT is contended by the learned counsel for the petitioner that there was no service of the summons on him. He never refused to accept the notice, sent through registered post, which was never tendered to him. That both the courts below have erred in recording the finding that the petitioner had knowledge of the suit and the service on him was sufficient. Learned counsel for the petitioner in support of the argument has relied on a decision of the Apex Court in Dr. Ramesh Chandra Tyagi v. Union of India, 1994 ACJ 579. In this case, the endorsement of service of refusal was made by the postman, who was not examined. No material was produced to prove the refusal, though the other parly denied the refusal on oath. It was held that the presumption that the service is sufficient cannot be taken.

( 7 ) IT has also been contended that the registered cover, which was received back show that the copy of the plaint was not accompanied with the notice. That, therefore, the service was not sufficient. In this connection. the learned counsel has relied on a Division Bench judgment of this Court in M/s. Transtel Electronics Ltd. , Kanpur v. S. N. Gundu Rao, 1983 ARC 395. It was observed in this case that if the copy of the plaint is not accompanied with the summons, the summons should not be held to be duly served.

( 8 ) I have considered the arguments and the law laid down in the aforesaid mentioned cases.

( 9 ) THE question whether the summons were duly served is a question of fact and is not a question of law and the cases relied on are not of much help in this case. In this case, there is concurrent findings of both the courts below after very closely scrutinising the evidence and the circumstances that there was due service of the summons and the petitioner refused the service intentionally to delay the case.

( 10 ) THE suit was filed in the year 1984. The shop in dispute is in the premises of House No. 148/9. Civil Lines. Muzaffarnagar. The petitioner is also living in the said house, as is apparent from the address mentioned in this petition. Summons were sent four times to the petitioner at the current address of that shop by ordinary process and also by registered post. It appears that he avoided the service of the summons and personal service could not be effected. At last the service was effected by refusal. The suit was decreed ex parte on 17. 8. 1996, i. e. , after about two years. In the circumstances, both the courts below have held that the petitioner had knowledge of th