The burden of proof lies with the party asserting non-service of summons; failure to provide evidence results in dismissal of the application to set aside ex parte decrees.

1. Instant miscellaneous appeal filed under O.43, R.1 (d) of CPC is directed against the order dated 19-09-2002 passed by 2nd Additional Motor Accident Claims Tribunal, Bemetara, District Durg, (for short 'the Tribunal') in Misc. Civil Suit No. 4/2002 whereby and whereunder appellant's application for setting aside the ex parte decree has been dismissed.

2. Indisputably, the award has been passed in favour of the claimants i.e. respondent Nos. 1 & 2 by the Tribunal on 15-10-1999 awarding compensation in their favour. It is also not in dispute pursuant to service of summons in the office of the appellant / Company, the Tribunal proceded ex parte against the appellant on 14-12-1998 and, thereafter, passed the award on 15-10-1999.

3. After about lapse of nine months of passing of the award dated 15-10-1999, appellant - Company moved an application for setting aside the same basically on the ground that the summons have not been served to any authorized officer and / or Director of the Company but were served upon some unknown person.

4. The Tribunal having found the appellant failed to adduce evidence to prove summons were not received by any authorized office and / or Director of the Company by examining process server and by adducing other evidence, dismissed the application. Hence this appeal.

5. I have heard learned counsel appearing for the parties.

6. Order IX, R.13 of CPC reads as under :
"Setting aside decree ex - parte against defendant in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;
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Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.
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7. In order to determine the application under Order IX, R.13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the Court with a reasonable defence. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application.

8. The provisions of S.101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substaintially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour.

9. Coming to the facts of the case, for the reasons best known the appellant, it did not adduce any evidence to prove the fact that the summons of the case in - fact were not duly served upon the appellant / Company but some unknown person, who is not working in the company, has received the same. In view of S.101 of the Evidence Act , it was for the appellant to prove by examining process server or postman to show that summons were not served upon the