The burden of proving due service lies with the non-applicants, and an agent empowered to accept summons is not invariably entitled to refuse summons.

Macnair—The applicant was the defendant in a Sm. C.C, suit. On the date fixed for hearing he did not appear. There was a report made by the process-server that his agent had refused to accept the summons and that a copy of the summons had then been duly affixed to the applicant's house. It was held that he was duly served and the case proceeded ex parte. The applicant, when he learnt that an ex-parte decree had been passed, against him, applied to the trial Court and produced his agent who deposed that the summons had not been offered to him. The learned Judge disbelieved the evidence of the agent and remarked that the applicant should have called the process-server. The Judge refused to set aside the ex-parte decree and the applicant applies in revision to this Court.

2. It is first urged that the non-applicants ought to have proved that the service was proper and should have called the process-server. Had the report of the process-server been entirely in accordance with law, it would have been for the applicant to prove that he had not been served; but there was a serious defect in the report of the process-server. Order 5, Rule 17, Civil P.C., lays down that the report shall contain the name and address of the persons, if any, in whose presence the copy was affixed. The applicant is a merchant of Khamgaon, and there must have been persons present at the time of; service. The report does not contain the name of any witness and is thus not framed in accordance with law. It does not in my opinion furnish prima facie proof of due service, and it was for the non-applicants to prove, by examining the process-server, that the applicant had been duly served. I direct that the question whether the ex-parte decree should be set aside should be reconsidered in the light of these remarks.

3. It has also been urged that the agent was not empowered to accept service of summons. But it appears clear that he was so empowered. Another argument is that an agent, if so empowered, has an option to refuse summons. Reliance is placed on In the matter of the Petition of Luchmee Chund, 1882 8 ILR(Cal) 317. But Rule 17, Order 5, Schedule 1, Civil P.C., lays down the procedure to be followed if an agent of the defendant, empowered to accept summons, refuses to do so : eventually the Judge may declare that the summons has been duly served or order such service as he thinks fit. It is quite clear from this rule that an agent is not invariably entitled to refuse summons. All that the learned Judges of the Calcutta High Court held was that in the particular circumstances, the agent might be justified in refusing to accept summons; it may be noted that the defendant was a private gentleman and -the agent was a Calcutta firm. In the present case the facts are very different and the Court rightly considered that the agent was bound to accept service. Costs in this case will be costs in the application to Small Cause Court. Pleader's fee Rs. 20.