Valmiki J Mehta, J.@mdashThis first appeal filed under Order 43 Rule 1(d), CPC impugns the order of the Trial Court dated 26.9.2013 by which the application of the appellant/applicant/defendant under Order 9 Rule 13, CPC for setting aside the ex parte judgment and decree dated 29.7.2002 was dismissed. The suit was a suit filed for recovery of money for goods supplied. The Court below has dismissed the application under Order 9 Rule 13, CPC by giving the following findings:
(i) Appellant/defend ant claimed that it/he was not served in the suit, but that factum was incorrect because the registered cover of service in the suit came back with the report on 25.5.2002 that on 21.5.2002, appellant-defendant has refused to receive the summons.
(ii) Appellant-defendant, and who is the judgment-debtor in the execution petition, claimed that it/he was served in the execution proceedings for 21.10.2011, however, no proof of service was filed by the appellant as having been served for 21.10.2011 and this showed that actually appellant/defendant/JD was watching the execution proceedings for at least over half a dozen dates of hearings, and without service suddenly choose to appear on 21.10.2011. The relevant facts in this regard are stated in para 4 of the impugned order and which I am not reproducing herein for the sake of brevity.
(iii) Though the trial Court need not have, and was not required to go into the merits, however, the trial Court in order to satisfy its judicial conscience with respect to any equity in favour of the appellant-defendant, has referred to the facts of the suit that the appellant/JD was shown the statement of account Ex. PW1/A showing the balance confirmation, and the appellant/JD admitted to the confirmation, but only claimed payment by means of the demand drafts. Though the trial Court does not say so, but what the trial Court means to say is that no reference to the demand drafts is made in the pleadings or any copies thereof have been filed in the Court record.
(iv) Trial Court also notes that appellant/JD had also issued necessary CST forms and which showed that transactions took place between the parties with the appellant/JD as buyer and respondent-plaintiff as seller.
2. Before me, Counsel for the appellant argues that unless there is postal receipt showing pre-payment of the registered cover charges, trial Court fell into an error in taking the factum with regard to service by means of registered post on account of the report of postal authorities of ''refusal''. It was also argued that appellant-defendant has rebutted the presumption by filing an affidavit with respect to non-service.
3. In my opinion, both the arguments urged on behalf of the appellant are misconceived and the trial Court is justified in concluding that the basic object of the appellant/JD/defendant, and who is liable to make payments for goods received, is basically to avoid making the payment of dues, and also playing hooky with the judicial process. The contention of the Counsel for the appellant is misconceived that there has to be filed a receipt of pre-payment of the registered cover charges because in this case actually the postal cover showing refusal of the appellant/defendant was filed and, therefore, it is clear that there must be pre-payment of postal charges for issuing of the registered cover. I in fact fail to understand the argument thus addressed before me on behalf of the appellant, once otherwise, admittedly there is an issued postal cover on record.
4. So far as the argument that the appellant has discharged the onus of proof, I may state that onus of proof is not discharged in a case like this by simply filing an affidavit. To discharge the onus on him the appellant if so wanted; but it/he did not do; was to ask for framing of issues and summoning of the postal record including the postman who made the report of refusal, but neither in any grounds of appeal before this Court nor anything in the trial Court record, shows that the appellant has made any such prayer/endeavour. Obviously this endeavour would not have been made because before giving the refusal report the postman had visited the address of the appellant/defendant, and refusal report was thereafter given. I may also add that in a case under Order 9 Rule 13, CPC, it is perfectly open, depending on the facts of each case, for the Court to decide the case on the basis of affidavits, and it is not necessary that evidence as in all cases under Order 9 Rule 13, CPC has to be necessarily led. I am making this observation although in the present case there is nothing before me that the appellant/defendant ever asked for framing of issues and leading of evidence for rebutting the aspect of refusal of the registered post containing the summons of the suit, and thus showing the agreement by the appellant-defendant to the procedure of disposing of the application under Order 9 Rule 13 by affidavits.
5. As already noted above, the trial Court in para-6 of the impugned judgment has shown that there is no equity in favour of the appellant-defendant who had admitted balance confirmation as also the issuing of CST forms which showed that he had received the goods under the subject transaction. There is therefore no merit in the appeal, and the same is dismissed, leaving the parties to bear their own costs.
