ORDER
V.K. Jhanji, J.
1. Plaintiff (petitioner herein) filed suit for declaration against defendants, Nand Singh and Dara Singh (respondents herein), Nand Singh was away to England at the relevant time. Registered notice was sent to him at he address where he was allegedly residing. Neither the registered letter not the acknowledgment due was received back. Nand Singh, defendant, was ordered to be proceeded against ex-parte. Suit was contested by the other defendant, namely, Dara Singh and ultimately, on 2.11,1985, suit was decreed ex-parte in favour of plaintiff. Appeal against the said ex-parte judgment and decree was filed by Dara Singh, which later on, was withdrawn. It is only thereafter that Nand Singh filed an application for setting aside the ex-parte judgment and decree was filed by Dara Singh, which later on, was withdrawn, It is only thereafter that Nand Singh filed an application, but on appeal by Nand Singh, first appellate Court accepted the appeal and set aside the ex-parte judgment and decree of the trial Court. The present revision petition is against the order of he learned Additional District Judge whereby ex-parte judgment and decree has been set aside and Nand Singh has been permitted to defend the suit.
2. The only contention of the learned counsel for the petitioner is that summons for service of Nand Singh were properly addressed and duly sent by registered post acknowledgement due and therefore, the trial court had not committed any illegality in proceeding ex-parte against Nand Singh. On the other hand, learned counsel appearing on behalf of Nand Singh has contended that the petitioner has been able to prove that the address on which registered A.D. letter was sent, was that of Nand Singh. It is contended that the discretion exercised by the learned Additional District Judge in setting aside the ex parte judgment and decree being based on material on record should not be interfered with.
3. After hearing the learned counsel and going through the record, I find no merit in this revision petition. Proviso to Order V, Rule 19-A of the Code of Civil Procedure, provides that where summons were properly addressed, pre-paid and duly sent by registered post acknowledgement due, the court may declare that summons have been duly served on the defendant notwithstanding the fact that the acknowledgement had been lost or mislaid or for any other reason, had not been received by the Court within 30 days from the date of issue of summons. Trial Court for proceeding ex-parte against Nand Singh had exercised power under the proviso as acknowledgement had not been received within 30 days from the date of issue of summons. The only question now for decision is whether the trial Court rightly declared that the summons were duly served on Nand Singh. Record does not show that any finding was recorded by the trial Court that the address on which Nand Singh was deemed to have been served, was his correct address. According to Nand Singh, he was staying at 144, Park Street South, Blakenhall, Volverhampton, England, whereas according to the petitioner, he was living at 70, Burnaby Road, Conventry, England CV6, N.U. There is not an iota of evidence to show that Nand Singh ever resided at the address given by the petitioner. In absence of any evidence in this regard, trial Court was not right in declaring deemed service of summons on Nand Singh on the address given by the petitioner. Accordingly, in my view the learned Additional District Judge has not committed any illegality in setting aside the ex-parte judgment and decree passed against Nand Singh, defendant.
4. Consequently, the revision petition being without any merit shall stand dismissed.
5. Parties through their counsel are directed to appear before the trial Court on 13.3.2000.