JUDGMENT
P.C. Misra, J.
1. The petitioner along with four others filed their nomination before the Grama Panchyat Officer, Patalda Grama Panchayat, P. S. Kakatpur, District Puri, who was also the Election Officer of the said Panchayat, to contest the election for the office of the Sarpanch. Two other candidates who Had filed their nomination withdrew their candidature. The nomination paper of opp. party No. 1 was rejected on the ground that he was a defaulter in respect of some dues of a co-operative society. Therefore, there was a contest amongst three candidates including the petitioner. The petitioner was declared elected as the Sarpanch of the aforesaid Grama Panchayat. Opp. party No. 1 thereafter filed an application before the Munsif, Puri, Under Section 31 of the Orissa Grama Panchayat Act, 1964 challenging the rejection of his nomination paper and praying for a declaration that the election of the petitioner was invalid. The said application was registered as Misc. Case No 59/84 in the Court of the Munsif, Puri, which was dismissed after due enquiry by an ex parte order passed by the learned Munsif on 27. 6. 1984 (vide Annexure-1). Opp. party No. 1 preferred Misc. Appeal No. 40/84 in the Court of the District Judge, Puri, Under Section 38(4) of the Orissa Grama Panchayat Act challenging the order of the learned Munsif in Annexure-1. According to the petitioner no notice of the said appeal was ever served on him as a consequence of which he could not appear to contest the appeal. The learned District judge heard the Misc. Appeal ex parte and allowed the same by his order dated 24-11-198.4 vide Annexure-2 declaring that the election of the petitioner was invalid and that a casual vacancy has occurred in the office of the Sarpanch of the said Grama Panchayat. The Collector, Puri, by his order dated 28-1-1985 (Annexure-3) directed the petitioner to hand over the charge of the office of Sarpanch to the Naib Sarpanch persuant to the aforesaid order of the learned District judge. The petitioner alleges that the came to know about the misc. appeal and its result only after the aforesaid order of the Collector, was served on him. The petitioner thereafter an application purporting to be one under Order 41, Rule 21, CrPC, on 2-1.1985 praying for rehearing;of the said Misc. Appeal No. 40/84 on the gruund that the appeal notice was suppressed at the instance of the present opp. party No., 1 , for whch he has been unduly prevented from appearing and contesting the appeal. The said application was registered as Misc. Case No. 3/85 in the Court of the District Judge, Puri. He also filed an applies Lion praying for stay of the order of the District Judge in Annexure-2 and their order of the Collector (Annexure-3). The learned District Judge, however, rejected the petition for stay by his order dated 16. 2. 1985 against which the petitioner moved this Court in OJC No. 434/85. Having heard the parties this Court by its order dated 18-3-1985 directed the District Judge, Puri, to dispose of Misc. Case No. 3/35 arising out of the Misc. Appeal No. 40/84 within a fortnight from the date of receipt of the order. Tilll then operation, of the order passed in Misc. Appeal No. 40/84 was stayed by this Court.
2. In pursuance to the order of this Court in OJC No. 484/85 the learned District judge, Puri, took up the hearing of Misc. Case No. 3/85 in which the present petitioner examined three witnesses including himself in support of his case that no appeal notice was ever served on him. The present opp. party No. 1 also examined two witnesses to prove that the appeal notice was served by affixture as the petitioner refused to accept the notice after the same was made over to him and the contents thereof was read over to him. The learned Discrict Judged by his order dated 6-4-1935 (Annexure-4) dismissed the Misc. Case No. 3/85 holding that the petitioner was duly served with the appeal notice. The aforesaid order of the District Judge in Annexure-4 has been impugned in this writ application.
3. The petitioner in this writ application challenges the order of the learned District Judge in Annexure-4 mainly on the ground that the decision of the learned District Judge is contrary to law completely ignoring the evidence on record and the view taken by him is perverse. Learned counsel appearing for the opp. parties fairly concedes that once it is held that no appeal notice was served on the present petitioner, he is entitled as of right to be heard in the appeal, It is also not disputed that the burden of proving that the petitioner was not served with the appeal notice lies squarely on him.
4. The petitioner as a matter of abundant caution has also filed a misc appeal in this Court against the order of the learned District Judge in Misc. Case No. 3/85. In stead of examining as to whether the grievance of the petitioner comes within the purview of the writ jurisdiction of this Court, we proceed to examine the sufficiency or otherwise of the alleged service of appeal notice In this writ application by the consent of parties in view of the pendency of the aforesaid misc. appeal in which the said question is permissible to be gone into and disposed of which would follow the result of this writ application.
5. Now the question which requires consideration is as to whether the petitioner was served with the notice of appeal. The appeal notice was sent by a special peon (P. W. 2) who admittedly served the same by affixure. The petitioner examined as P. W. 1 has stated that no notice was served on him nor it was ever offered to him in connection with the aforesaid misc. appeal. He also denies that the witnessess who had signed on the service report were never present to witnes the alleged service of notice and the report of the process server is false. P.W. 2 is the process server who was permitted to be cross-examined by the petitioner Under Section 154 of the Indian Evidence Act. In his evidence though he stated that a copy of the notice was offered by him to the petitioner which he refused to accept whereafter he affixed the -copy of the notice on the sadar door of his house, he did not state that he had informed the petitioner that the document tendered was a notice in an appeal before the District Judge or that the petitioner was made aware of the contents of the notice. In the cross-examination by the petitioner P. W. 2 stated that he had crossed a river to approach the village of the petitioner which P. W. 3 who is admittedly one of the witnesses to the service of notice, denied saying that no river intervenes to approach the village. Besides, P. W. 2 was unable to give out any other details about the location of the house of the petitioner. P. W. 3, who, as already stated in one of the witnesses and has signed in the process server’s report (Ext. 1) denies that no notice was ever offered to the petitioner in his presence though he contributed his signature at the request of the process server. Opp. party No, 1 examined himself as O. P. W. 1 who naturally supported his own case by saying that the process server offered the notice to the petitioner and the same was affixed on his sadar door on his refusal to accept. He was the identifier to the service of notice. The other attesting witness was examined by the opp. parties as O P.W. 2. But his evidence cannot be relied upon for the simple reason that he was one of the contesting candidates in the election in which the petitioner was declared elected. Having gone through the entire records, even accepting the evidence of the process server that he had gone to the village and had affixed the notice to the sadar door of the petitioner Cm Sis refusal to accept the same we are satisfied that it would not be a valid service of notice for the reason that he (process server) does net make a statement that the petitioner was informed that the document tendered was a notice for does he say that he had informed the petitioner about the nature and contents of the document tendered. In the circumstances mere tendering of notice would not amount to valid service There was apparently no reason why the petitioner would choose to avoid the notice of the appeal in which his election to the office of Sarpanch was being challenged. We would, therefore, conclude that the finding of the learned District judge that there was valid service of notice is contrary to the evidence on record which the learned District Judge failed to consider keeping in view the correct position of law.
6. In the result, the impugned order in Annexure-4 is set aside and the writ application is allowed. Misc. Case No. 3/85 shall be taken to have been allowed and the learned District Judge shall proceed to hear Misc. Appeal No. 40/48 on merits and dispose of the same as expeditiously as possible.
There shall be no order as to costs.