K. Kannan, J.The revision is against the order dismissing an application for setting aside an ex parte decree in a suit for specific performance of an agreement alleged to have been executed by the petitioner-defendant in favour of the plaintiff in respect of 16 kanals of agricultural land. The order of dismissal was confirmed in the appellate Court and the revision is against the said order. The contention of the petitioner is that in two contemporaneous agreements brought about within a span of 6 weeks, the plaintiff had filed a suit for specific performance. The first agreement was said to have been executed on 06.09.1989 and yet another suit which is now the subject matter on the basis of another agreement dated 24.10.1989. While the first suit was contested, the second suit was said to have been decreed ex parte. The first suit was dismissed by the trial Court and the appeal filed by the plaintiff had also been dismissed. The contention is that if the petitioner had entered a stout contest and ensured that the plaintiffs suit was dismissed, there was simply no reason why he should have deliberately refused to receive the summons in a contemporaneous suit filed and allowed an ex parte decree to be passed. The ex parte decree was on alleged satisfaction of the Presiding Officer that the defendant had refused to accept the summons and hence, liable to be set ex parte.

2. The learned counsel for the revision petitioner would point out that at all occasions, the plaintiff was taking summons to a wrong address and even the registered notice that had been ordered to be sent along with the courts summons had been taken to the plaintiffs own address as evident from the registration receipt filed in Court. Even the alleged refusal was a manipulated endorsement with an attesting witness who was none other than the numberdar, who was working directly under the plaintiff. He would urge that neither the attesting witness nor even the court bailiff had not been examined to vouch for the endorsement that the defendant had deliberately refused to receive the same.

3. The learned counsel for the respondent would point out with reference to the judgment of the courts below that considered the fact that the plaintiff and his witness had given evidence at the stage of the application to set aside the ex parte decree that they had informed the defendant about the decree that had been passed and had urged him to execute the sale, but he did not do so. He knew very well about the ex parte decree that had been passed. To these versions, there has been no cross-examination and the counsel would argue that the absence of cross-examination, it must be understood as acceptance of what was stated in chief examination. The counsel would also contend that even in a situation where the party would complain that he did not know about the service of summons in suit, if he had otherwise knowledge in the manner attributed to him by the plaintiffs witness, that itself should be taken as a reason to disentitle the petitioner from having the suit set aside. For both the submissions made, the counsel would refer me to the judgments of the Supreme Court expounding to such proposition. The learned counsel would also contend that that the endorsement of service and the Courts satisfaction must be taken to be reflections of official acts to which the presumption u/s 114 of the Evidence Act must be invoked. The counsel would state that the petitioner must have taken upon himself the burden of discharging the presumption by examining the court process server himself and proved his contentions.

4. It is a suit for specific performance in relation to an agricultural land of 16 kanals that was valued of Rs. 1 lakh in the year 1989, I have no doubt in my mind that the property must be a very valuable property now. The case has also stood on for more than 2 decades but the application is required to be seen as though the application is taken up immediately after the order was passed by the courts below and I cannot take the pendency of the petition without a final decision to cloud the consideration on merits. On such a test, I am of the view that to allow for rights of parties to be concluded merely on an endorsement of refusal by the bailiff or a statement of a plaintiffs witness, who is the most interested persons to state that they apprised the defendant about the decree seem too harsh. I cannot take the issue of dismissal of a yet another suit filed by the plaintiff at about the same time as totally irrelevant, for that, it has at least explained that the defendant could not have remained without a contest if he had known about the same. On the subject therefore of refusal of endorsement in the summons, the statutory presumption u/s 114 of may presume will have to give way to direct provisions under the CPC itself. Order 5 Rule 7 CPC details a procedure to be followed when the defendant refuses to accept service or cannot be found. The requirement is that the serving officer shall affix the copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinary resides and carries on business. In this case, at the previous hearing for a service made to the same address, a return was made that he was not residing at the same address and I do not know as to how any affixture could have been made if there was a refusal of service of summons. The procedure again to be followed in a case where the refusal is endorsed allows the Court to look for better evidence in appropriate cases. In my view, it was one such appropriate case where the court must have allowed for something better in the manner Order 5 Rule 19 declares.

5. Order 5 Rule 19 CPC reads as follows:-

19. Examination of serving officer.- Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.

In this case, if the presumption of official act does no more than to set a party to look for either an affirmation or denial, the moment denial is made by service, the presumption is of no significance. In this case, the presumption is supplanted by the statutory prescription itself under Order 5 Rule 19 CPC requiring the serving officer to be examined.

6. The test of how a burden is discharged is brought through Section 102 of the Evidence Act, as follows:-

102. On whom burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

The test shall be as to what is to happen if no evidence is given on either side and that is how the burden is to be seen. A person, who was relying therefore that there was a valid service of notice, and yet another person contending that he was not served at all and that he never refused, if both the parties did not given any evidence, it would have only resulted in a finding that there was no service. The burden, in this case, must therefore be on the person, who affirmed that there was a valid service which was refused and it will be an untenable argument to make that the defendant must put the court bailiff in witness-box as his witness to deny that he did not serve the summons and that the defendant did not refuse to receive the same. It will be inverting a legal logic to levels which the statute does not provide for. I will, therefore, reject the argument that there had been any valid service of notice.

7. It is a harsh fact that the plaintiff has not secured the fruits of his decree for more than 2 decades but so too, is for other litigants who are before court who are not able to realize the fruits of their own decrees. It is a known fact that a litigation starts really only after a decree is passed. In this case, the decree that is passed has been illusory and it goes back to where it started. It was, however, inevitable in the way that the proceedings have gone on. The Court could not have allowed the ex parte decree to be sustained and prevented the opportunity for the defendant to make a contest on merits, especially with the nature of contest which was made and the nature of endorsement that was seen in the official records.

8. Here is a case where the defendant had surely had the benefit of Rs. 46,000/- which he had received. Whatever is the defence that he is making that surely at least were the recitals found in the document as having been received by him at the time of agreement. To test the bona fides of the defendant, I am of the view that after providing for a reasonable appreciation at 12% on the amount which he is alleged to have received, he shall deposit Rs. 2 lakhs in Court to the credit of the suit and shall also pay a cost of Rs. 10,000/- to the plaintiff as a condition precedent for having the decree set aside. The said amounts shall be deposited/paid respectively within a period of 4 weeks from the date of receipt of copy of this order. If both the above said amounts are not deposited and paid, as directed, the order passed already shall remain. If there is a compliance of the condition, on the revision being allowed, the case must be taken up before the trial Court as expeditiously as possible.

9. On several occasions, when a higher forum directs a disposal of the case to be expeditiously, it gets to be a merely an observation that is breached more often than not. At every such occasion, it has been the experience of Presiding Officer making periodical requests for extension of time. It is just not the Presiding Officers own laches; there is at least one party in all matters who is interested in prolonging the case. In this case, the situation is truly poignant for a plaintiff who has approached this Court for enforcement of an agreement which is more than 3 decades old. These expressions are only remind to the Presiding Officer that the case requires utmost sensitivity and speed and he shall endeavour to secure a quick disposal with the best effort from the Presiding Officer for conclusion. The order impugned is set aside and the civil revision is ordered on the above terms.