JUDGMENT

Manish Mathur, J.

Heard Mr. Mayankar Singh, learned counsel for revisionist and Mr. Prashant Singh Gaur, on behalf of opposite party No.1.

2. Learned counsel for the parties admit that opposite party no.2 is merely proforma in nature and, therefore, notices are dispensed with.

3. Revision under section 115 of the Code of Civil Procedure, 1908(hereinafter referred to as the Code) has been filed challenging orders dated 07.01.2021 and 20.01.2023 passed in Regular Suit No.760 of 2019 instituted for declaration. Vide order dated 07.01.2021, exparte proceedings were directed against the revisionist/defendant and vide order dated 20.01.2023, application preferred by revisionist under Order 9, Rule 7 of the Code has been rejected.

4. Learned counsel for revisionist submits that although notices were issued in the aforesaid proceedings but the revisionist as defendant was never served with notice resulting in her non-appearance and passing of order dated 07.01.2021 directing ex parte proceedings against her. It is submitted that upon gaining knowledge of aforesaid order, an Application under Order 9, Rule 7 of the Code was preferred which has also been rejected by means of order dated 20.01.2023 primarily on the ground that since notices were issued to defendant at her correct address, it would be deemed that said notices had been served upon the defendant. It is submitted that once the defendant in her Application under Order 9, Rule 7 of the Code made a specific averment that she was never served any notices with regard to suit proceedings, the presumption under law stood rebutted and in fact the burden was upon the plaintiff to have proved service of notice. It is submitted that the deeming clause would be applicable only in case it is not rebutted. It has also been submitted that due to passing of impugned orders, a valuable right of participation to defendant has been lost. Learned counsel has placed reliance on the following decisions to buttress his submissions:-

(a) Puwada Venkateswara Rao v. Chidamana Venkata Ramana reported in (1976) 2 SCC 409 [Hon'ble the Supreme Court];

(b) Sushil Kumar Sabharwal v. Gurpreet Singh and others, reported in (2002) 5 SCC 377: AIR 2002 SC 2370 [Hon'ble the Supreme Court];

(c) M/s Sultan Leather Finishers (Pvt.) Ltd. and others v. Additional District Judge, Court No.4, Unnao and others, reported in 2005 (23) LCD 476 [Decision of this Court];

(d) Amarnath (since deceased) and others v. Ram Murti Devi and others, reported in 2013 (31) LCD 909 [Decision of this Court];

(e) Smt. Satya Bhama Mishra and others v. Smt. Kamlapati Devi and others, reported in 2013 (31) LCD 2093 (6) [Decision of this Court]; and

(f) M/s New Manufacturing Com. and others v. State Bank of India Badaun, reported in 2012 (30) LCD 2614 (6) [Decision of this Court].

5. Learned counsel appearing on behalf of answering opposite party has refuted submissions advanced by learned counsel for revisionist with submission that in terms of Proviso to Order 5, Rule 9 (5) of the Code, there is an inherent presumption with regard to service of notice upon defendant where the summons are properly addressed, pre-paid and duly sent by registered post acknowledgement due as was in the present case. It is submitted that the impugned orders have been passed on the basis of material on record which clearly does not rebut the said presumption. It is also submitted that even in Application under Order 9, Rule 7 of the Code, no cogent explanation has been furnished by the revisionist/defendant for recalling order dated 07.01.2021. It has been further submitted that a finding of fact recorded by the trial court cannot be interfered with in proceedings under Section 115 of the Code until and unless order is not within four corners of the provisions thereof and as such it is submitted that since no material irregularity has been indicated in the orders impugned nor has it been indicated that the trial court has failed to exercise a jurisdictio