Basant Singh and Another vs Roman Catholic Mission

Sema, J.—Leave granted.

The sole question that falls for consideration in this appeal is,whether the service of notice sent by registered post with acknowledgementcard in terms of Order 5 second proviso to Rule 19A of the Code of CivilProcedure read with Section 27 of the General Clauses Act, 1897 can beaccepted as a sufficient notice.

This appeal filed by the defendants (judgment debtors) arisesout of the following material facts. Suit No. 473 of 1985 filed by thelandlord ended in passing of an ex-parte decree by the Trial Court on30.5.1986. The appellants preferred an application on 6.10.1986 underOrder 9 Rule 13 for setting aside the ex-parte decree which was rejected bythe Trial Court. Their appeal before the appellate court and revision petitionbefore the High Court ended without any success. It appears, initially theplaintiff (respondent herein) could not deposit the requisite process fee forwhich the summons could not be issued to the appellants-defendants. On2.4.1986, the Trial Court ordered the summons to be issued to the defendants, both by ordinary process and by registered post, and the casewas adjourned to 30.4.1986. On a perusal of the record, and not disputed bythe parties, we find that the registered notices were issued to the defendantsvide postal receipt Nos. 875 and 876 dated 24.4.1986. As on 30.4.1986,summons issued by registered posts were not received back, the case wasadjourned to 30.6.1986 awaiting the receipt of the service report. On30.6.1986, the Trial Court again ordered that fresh summons both byordinary post and registered post be issued within three days. The TrialCourt also ordered substituted service by resorting to Order 5 Rule 20C.P.C. by publication of summons in local daily "Dainik Bhaskar". On5.8.1986, it appears that a notice of publication in daily newspaper"Aacharan" instead of "Dainik Bhaskar" as ordered by the Court has beenproduced. This is one of the grievances of the appellants, which we shall bedealing at appropriate place. On 22.8.1986, the Trial Court passed an orderto proceed ex-parte and fixed the case for 4.9.1986 for evidence of theplaintiff. As the date fixed - 4.9.1986 was declared a public holiday, theplaintiff's witness was examined on 5.9.1986 and the ex-parte judgment anddecree was passed on 30.9.1986. It is stated that the appellants came toknow of the ex-parte decree on 1.10.1986 and filed an application on6.10.1986 for setting aside the ex-parte decree, as noticed above.

Learned counsel for the appellants contended that the TrialCourt has acted in violation of the procedure prescribed under Order 5 of theCode of Civil Procedure, in issuing summons to the defendants. He furthercontended that the substituted service can be resorted to only when the courtis satisfied that the defendants is avoiding the service or the service cannot beeffected in an ordinary way. The Trial Court having not passed any orderabout the satisfaction an envisaged under the Code, it was not open to theTrial Court to order for substituted service. This submission need not detainus any longer. ON the facts of the case the court's satisfaction is implicit inthe order directing service by publication.

Order 9 Rule 13 of the CPC insists that the applicantmust satisfy the court two conditions (a) that the summons was not dulyserved and (b) that the applicant was prevented by any sufficient cause fromappearing before the court when the suit was called on for hearing. In thepresent case second condition is not attracted.

Regarding the contention of the counsel for the appellants that thesummons were not duly served, as the substituted service has been publishedin the local daily "Aacharan" instead of "Dainik Bhaskar", we may point outthat it is in the evidence on record that both "Aacharan" and "DainikBhaskar" are the local dailies and are widely circulated in the area. Inordinary circumstances, if both the local dailies are widely circulated in thearea the change of the name of the local daily from "Dainik Bhaskar" to"Aacharan" would not materially affect the service of notice by way ofsubstituted service, deemed to have been served, and would not invalidatethe effect of substituted service just because the notice for substitutedservice has been published in the local daily which is not ordered by thecourt. It is the specific contention of the plaintiff-respondent that the noticehas been published in the local daily "Aacharan" on 9.8.1986 and the saidlocal daily is widely circulated in the area and the substituted service wouldconstrue as sufficient notice upon the defendants. We are also of the viewthat it is inherently probable that publication in the local daily "Aacharan"which is widely circulated in the area would have constituted a sufficientnotice to the defendants.

Before the Trial Court the stand taken by the plaintiff was that the defendants had knowledge about the suit filed by the plaintiff and they hadsufficient time to appear and answer the plaintiff's claim but they did notappear and the application had been filed with intention to cause the delay.Be that as it may, we are of the view that the publication of the substitutedservice in the local daily "Aacharan" instead of "Dainik Bhaskar" is a mereirregularity in service of summons.

Second proviso to Order 9 Rule 13 casts an embargo on the court thata decree passed ex-parte shall not be set aside merely on the ground thatthee has been an irregularity in the service of summons.

Order 5, proviso to Sub-rule (2) of Rule 19A of C.P.C. provides thatwhere the summons are properly addressed, prepaid and duly sent byregistered post with acknowledgement due, notwithstanding the fact that theacknowledgement having been lost or mislaid, or for any other reason, hasnot been received by the Court within thirty days from the date of the issueof the summons, the Court shall presume that notice is duly served. Further,Second 27 of the General Clauses Act, 1897 (in short 'Act) provides similarprovision. The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading convincing and cogentevidence.

It is nobody's case that the postal addresses of the defendants are notproperly addressed and, therefore, the registered summons could not beserved. It is also nobody's case that the registered summons are not pre-paidand not duly sent. In fact the registered summons, bearing receipt Nos. 875and 876 dated 24.4.1986, were issued is borne out from the record.

Once it is proved the summons were sent by registered post to acorrect and given address, the defendants' own conduct becomes important.Before the Trial Court, the appellants were allowed to lead evidence insupport of their contentions. An order to this effect was passed by the TrialCourt on 11.1.1991. The premises in question is occupied by twodefendants jointly - Hari Singh and Basant Singh. Hari Singh appeared andexamined himself stating that he did not receive the registered letter.However, the defendant Basant Singh did not appear and no evidencewhatsoever, on his behalf, has been led to rebut the presumption in regard toservice of summons sent to him under registered post with acknowledgmentdue. His own conduct shows that the registered summons had been dulyserved on him. As already noticed, Hari Singh appeared and save andexcept the bald statement that registered letter was not tendered to him, noevidence whatsoever was led to rebut the presumption. He could haveexamined the postman, who would have been the material witness andwhose evidence would have bearing for proper adjudication. He has failedto discharge the onus cast upon him by the Statute. This apart, it isinherently improbable that the registered summons were duly served onBasant Singh but not to Hari Singh when they occupied the tenantedpremises jointly.

As noticed above, the registered summons were to Basant Singhand Hari Singh vide postal receipt Nos. 875 and 876 dated 24.4.1986 on thecorrect and given address is borne out from the record. Ex-parteproceedings were ordered on 22.8.1986 and ex-parte decree was passed on30.9.1986.

In the facts and circumstances as noticed above, this appeal is devoidof merit and it is, accordingly, dismissed. No costs.