Bhawani Prasad vs Bhanwar Singh

Rajendra Saxena, J.—This appeal is directed against the order dated 4.9.93 passed by the learned district Judge, Udaipur, whereby defendant appellant''s application filed under Order 9. Rule 13 C.P.C. for setting aside the exparte decree dated 23.3.91 was dismissed.

Briefly the facts necessary for the disposal of this appeal are that the plaintiff-respondent filed a suit for specific performance of agreement to sale dated 5.7.89 against the appellant in the lower Court. The District Judge by his order date 18/7/90 directed that under Order 5 Rule 19-A CPC for simultaneous issuance of summons for service against the defendant-appellant by post in addition to the summons for service under Order 5, Rule 9 CPC. It appears that on the next date i.e. 25.8.90, the summons sent through both the modes were not received in the Court and, as such 25.9.90 was fixed. On that day, acknowledgment receipt was received in the Court, but the Presiding Officer was on leave. However, on the aforementioned two dates, the defendant did not appear. On 12.11.90 also, the defendant was not present. Therefore, order for proceeding exparte against him was passed. The District Judge alter recording the evidence by his judgment dated 23.3.91 passed an exparte decree against the appellant. On 1.7.91, the appellant filed an application under Order 9 Rule 13 CPC alleging that no summon either by post or through due course was received by him; that the acknowledgment receipt did not bear his signatures and that since the said acknowledgment receipt does not bear any postal seal, the alleged service on him through registered post appears to be suspicious. He also pleaded that no summons after service through the Court was receive in the lower Court, therefore, service of summons on him was insufficient and the order dated 12.11.90 for proceeding exparte against him was improper and unjustified. He further pleaded that he did not deliberately remain absent that he came to know about the impugned exparte decree for the first time through telegram dt. 23.3.91 sent to him by the respondent and, as such, the exparte decree be set aside.

The respondent in his reply reiterated that the summons alongwith copies of the plaint were sent to the appellant through registered post A/D vide postal receipt No. 2467 dated 13.8.90 Ex. A/1 as well as in due course, the summons sent through post was duly received by the appellant as is evident from the acknowledgment receipt Ex.A/3, received in the Court. In support of his application appellant Bhawani'' Prasad examined himself as AW 1 and produced his son AW 2 Arun Kumar and AW 3 Ratanlal Postman. In rebuttal respondent NAW 1 Bhanwar Singh was examined. The learned District Judge after scanning analysing and evaluating the evidence adduced by the parties by his impugned order dt. 4.9.93 dismissed appellant''s application for setting aside the exparte decree. Hence this appeal.

I have heard Mr. R.K. Thanvi, learned Counsel for the appellant and Mr. N.P. Gupta learned Counsel appearing for the respondent and perused the record of the lower Court in extenso.

Mr. Thanvi has vehemently contended that in this case no step were taken for the issue of summons in the ordinary course and that the lower Court also did not make a declarations envisaged under R19-A (2) of 0.5 CPC to the effect that the summons sent through registered post was duly served on the appellant. Therefore, the order for proceeding exparte was not justified and, as such, the lower Court has committed an illegality in passing the exparte decree against the appellant. For this he has relied on the case of Union of India(UOI) Vs. Sri Laxmi Oil Mills, His next contention is that the appellant has sufficiently discharged the onus to prove that no summons through registered post was received by him and that the respondent has failed to rebut the same. Therefore, the learned lower Court has committed material irregularity in rejecting appellant''s application.

Mr. N.P. Gupta, learned Counsel appearing for the respondent, has reiterated the resonings given by the lower court in the impugned order.

I have given my thoughtful consideration to the rival submissions made at the bar. Rule 19-A (2) of Order 5 CPC requires that when an acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant. The proviso appended to this sub rule envisages that where the summons was properly addressed, prepared and duly sent by registered post, acknowledgment due, the declaration referred-to in this sub-rule shall be made notwithstanding the fact that the acknowledgment haying been lost or mislaid or for any other reason, has not been received by the court within thirty days from the date of the issue of the summons. It is therefore abundantly clear that behind the expression "shall declare that the summons has been duly served", the intention of the legislature is that there should be substantial compliance of this provision and the order passed should be indicative of the fact that the Court had applied its mind as to whether the postal article was returned with an endorsement contemplated in sub rule-2. In the instant case, it has been well established that the summons through registered post was sent by postal receipt No. 2467 dt. 13.8.90 (Ex.A.1). The order sheet of the learned lower Court filed dated 25.8.90 amply reveals that the acknowledgment receipt of the said summons was not received in the Court by that day. However, acknowledgment receipt was received in the Court prior to the next date i.e. 25.9.90. Since on that day, the Presiding Officer was on leave, no order could be passed. Thereafter, on 12.11.90, the Presiding Officer, after perusing the acknowledgment receipt and recording the fact that the defendant was absent on previous dates also passed order for proceeding exparte against him. It is true that in this case there is no specific declaration made by the lower Court to the effect that the summons had been duly served on the defendant still then, when it passed the order proceeding exparte it can safely be inferred that the lower Court had come to the conclusion that the summons issued against the defendant appellant through registered post A.D. had been duly served on him. Hence simply for want of the declaration in specific terms in this behalf it cannot be held that the summons was not duly served on the appellant or that the Court did not apply Us mind or that the exparte decree passed against him was illegal. It is needless to mention that an exparte decree cannot be set aside merely on the ground that there was an irregularity in service of the summons.

If the defendant challenges that he did neither receive the notice nor the summons was offered to him, nor did he refuse the same, then the onus will squarely lie on him to prove the contrary. In the case in hand, defendant-appellant has miserably failed to discharge his onus. Firstly, appellant Bhawani Prasad (AW1) in his statement has simply denied that A.D. receipt Ex.13 does not bear his signatures. Admittedly, A.D. receipt Ex. 13 does not pertain to the summons sent to him through registered post vide postal receipt dated 13.8.90 Ex.A.1. On the other hand, it relates to a notice sent by the plaintiff-respondent to him before filing of the suit vide postal receipt No. 2236 dt. 17.4.90. Thus the appellant had no courage to depose that the impugned acknowledgment receipt Ex.A.2 pertaining to postal receipt No. 2467 dt. 13.8.90 did not bear his signatures. Similarly, his son AW2 Arum Kumar has also denied the signatures of his father on the acknowledgment receipt Ex.13. He has also not deposed that the impugned acknowledgment receipt Ex.A.2 does not bear the signatures of his father. Bhawani Prasad and Arun Kumar have specifically admitted that the address mentioned on the impugned acknowledgment receipt Ex.A.2 was the correct address of their house. Arun Kumar has also admitted that on 20.8.90, the post man had brought a registered letter at their house but since his father Bhawani Prasad, who was Personal Assistant to Collector, Jaipur, had gone to his office, the said post man took away that registered letter. Therefore, from his testimony, it stands firmly established that the summons of this case was sent to the appellant through registered post A.D. and that the post man did bring the letter to appellant''s house for delivery. The appellant did not care to file any certificate from the concerned post office to the effect that the registered letter pertaining to postal receipt No. 2467 dt. 13.8.90 was actually not delivered to the addressee or that the same was sent back to the sender. He also did not send for the Delivery Book of registered letters of the post man to prove that the said registered letter was not delivered to him and that the same was returned to the sender. Even AW 3 Ratanlal, postman, has specifically admitted that he was not sure as to whether on 20.8.90 his duty was for delivering the registered articles or the ordinary mail in absence of his duty chart. That duty chart was also not sent for by the appellant and got proved in the Court. On the other hand NAW 1 Bhanwar Singh has categorically stated that impugned A.D. receipt Ex.A.2 bears the initials of Bhawani Prasad. In such circumstances, the learned trial Judge has rightly held that the appellant miserably failed to discharge the burden to establish that the summon through registered post vide postal receipt Ex.A.1 was not received by him.

Mr. Thanvi has relied on Union of India''s case (supra). In that case, the Court directed the service of summons by registered post even without issuing summons for service in the manner prescribed in Rule 9 of Order 5 CPC. Summons in the ordinary course was also not issued. The Court had also not made a declaration regarding due service under Rule 19A(2) of 0.5 CPC. In such circumstances, it was held that the date could not be fixed for an exparte hearing because the mode of service by registered post was only in addition to service of summons in the ordinary course and that the Court was required to simultaneously send notices in the ordinary course and by registered post. But such are not the facts of the case in hand because a bare perusal of order sheet dt. 18.7.90 of the lower Court discloses that the learned District Judge had ordered for issuing the summons through ordinary course as well as through registered post A.D. and in pursuance thereof, on 10.8.90, two sets of summonses were submitted by the plaintiff respondent, which is evident from the endorsement of the clerk concerned appearing on the ordersheet. Moreover, in Samir Snigdha Chandra Vs. Pranaya Bhusan Chandra and Others, it has been held that the whole scheme of Rule 19-A is to expedite the process of service of summons which usually takes a long time and that the only requirement of this rule is, issue of summons simultaneously in the ordinary manner and by the registered post and that once that is done, then it cannot be contended that in the absence of proof of proper service of summons in the ordinary manner, the service by post would be rendered ineffective because taking such a view would make the. amendment completely nugatory and defeat the intention of the legislature. It has further been held that once a declaration under Sub-rule (2) of Rule 19 A is made by the Court, service by registered post on the defendant shall be deemed to be sufficient. In such circumstances, the principle laid down in Union of India''s case (supra) has no application to the facts of the case in hand.

Secondly, there is not a fringe of evidence or any circumstance to show that the learned lower Court by slip of pen or due to oversight had market Ex.13 on the impugned acknowledgment receipt marked Ex A.2. More over, such an argument was not advanced before the learned lower Court. Hence, it is amply clear that this argument has now been invented, which is not supported by the record and the same cannot be accepted.

In my considered opinion, the learned District Judge has neither misread the appellant''s evidence nor was he misled while dismissing application under Order 9, Rule 13 CPC for setting aside the exparte decree. The Court below has, therefore, not committed any illegality or material irregularity.

No other point was pressed before me.

Hence for the reasons mentioned above, the impugned order does not warrant any interference and accordingly this appeal is hereby dismissed.