K.A. Desai and Co. vs Vijaysinhji Bhimsinhji

Chhatpar, J.—This is an appeal from an Order of the Assistant Judge, Central Saurashtra Division, Morvi, refusing to set aside an ex-parte decree under Order 9, Rule 13, Code of Civil Procedure. The Respondent-Plaintiff had filed a suit against the Appellant for recovery of Rs. 6000/- and odd. It is common ground that the Defendant is not a firm, but Mr. K.A. Desai trades in the name Messrs. K.A. Desai and Co., at Rajkot. The very first summons was issued by registered post and the postal acknowledgment was received signed by one Ratilal. The summons was for a hearing on 21-4-51. The acknowledgment is dated 5-4-51. It is admitted that Ratilal is a clerk in the Defendant''s concern. On the morning of 21-4-51, the Defendant sent a wire stating Unwell. Certificate follows. Kindly adjourn." This telegram was received by the Court on the same date. A letter hearing the same date was posted by the Defendant from Rajkot stating that he was ill enclosing a certificate of a doctor, and requesting for an adjournment and also enclosing a stamped envelope for a reply from the Court. This letter was received by the Court on 24-4-51. The Court took no notice of either the telegram or the letter.

On 21-4-51 the date of hearing, the Court passed an Order that the case be proceeded ex-parte and an ex-parte decree was passed on 25-4-51, a day after the letter of the Defendant along with the certificate was received by the Court requesting for adjournment on the ground of his illness. The Court sent a notice informing the Defendant of the ex-parte decree having been passed against him, which was received by Ratilal on 20-6-51. The Defendant filed an application for setting aside the ex-parte decree on 23-6-51. The application was based upon two grounds, first, that the summons was1 not duly served and secondly that the Defendant was prevented by sufficient cause on account of his illness from being present in. Court when the case was called for hearing on 21-4-51. The learned Assistant Judge of the lower Court refused this application holding both that the summons was duly served and that the Defendant had failed to prove that he was prevented from sufficient cause from attending the Court remarking that beyond the affidavit of the Defendant there was no evidence to prove that the Defendant was really ill. The learned Judge observed that the doctor had not been summoned who had given the certificate that the Defendant was suffering from diarrhea and that the Defendant had not dared to step into the witness box, which remark was apparently unjustified as the Defendant had filed his affidavit and it was for the Plaintiff to have cross-examined him it he wanted to do so. The Defendant has now come in appeal to this Court.

Mr. A.R. Baxi, the learned advocate for the Appellant, has reiterated the same points urged before the lower Court, firstly, that the summons was not duly served and secondly that the Defendant was prevented by sufficient cause owing to his illness from being present in Court at the date of hearing, contending that there was nothing to contradict the affidavit of the Defendant showing that he was in fact ill. Mr. M.O. Shah the learned Advocate for the Respondent has urged that the application for setting aside the decree was barred, by limitation under Article 164 both on the basis that the summons was duly served, the application being filed after 30 days of the ex-parte decree and also on the ground that even if the summons is held to be not duly served the Defendant had failed to prove that he had knowledge of the decree within 30 days before filing his application for setting aside the ex-parte decree, the argument being based upon the burden lying upon the Defendant to prove as to when and from what source the Defendant came to know of the passing of the decree. The Defendant''s affidavit merely stating that he came to know on 20-6-51 was not sufficient, although it coincided with the receipt of the notice from the Court informing the Defendant of the passing of the ex-parte decree.

I may deal with the contentions of the respective parties together. In the first place, it is clear under Order 9, Rule 13, CPC that the Defendant need either prove that the summons was not duly served or that he was prevented from sufficient cause. If it is proved that the summons was not duly served, he is entitled to get the ex-parte decree set aside subject to the question of limitation under . Article 164 which enjoins him to file the application within 30 days of the knowledge of the decree. Mr. A.R. Baxi for the Appellant contends that the summons was not duly served on the ground that the trial Court was not authorised to serve the summons, by registered post. This leads me to the consideration under what circumstances the Court is authorised to serve summons by post. I may state that the Saurashtra High Court has not amended the provisions of Order 5 of the CPC as has been done by several other High Courts by amending Rule 9 or Rule 10 or framing a separate Rule as has been done by the Bombay High Court providing for service of summons by post. So that we have to consider the power of Court to serve summons by post as is laid down by Order 5 of the CPC without any local amendment.

Now there are five Rules under which a Court can possibly Order service of summons by post to be sent direct to the Defendant. Rule 25 and Rule 30(3) of Order 5 contain specific provisions for sending summons or letter substituted for summons by post. Summons by post can also be sent by way of substituted service under Rule 20. It. would be justified as authorised by the words or in such manner as the Court thinks fit'' in Clause (1) of Rule 20. Under Rule 9, a Court may probably send a summons by post as the words ''unless the Court otherwise directs'' may be construed to include delivery of summons to postal authorities for service on the Defendant; but under this Rule the Defendant must be residing within the jurisdiction of the Court. The fifth provision under which the Court may possibly issue summons by post is under Rule 19 by construing the words ''or such service as it thinks fit'' as authorising service by post. This Rule is however consequent on the failure of the service of summons under Rule 17. Now in the present case the Defendant was not residing within the jurisdiction of the Court nor was he residing outside the State; so that the Court had no power either under Rule 9 or Rule 25 to issue summons by post nor did the Court purport to issue the summons by substituted service under Rule 20 or a latter Rule 30(3). The provisions of Rule 19 do not apply as there was no return of the summons under Rule 17. Consequently it appears to me quite clear that the Court could not in the first instance send summons by post to the Defendant who was admittedly residing outside the jurisdiction of the Court but within the State of Saurashtra. The proper procedure was to send the summons under Rule 21 to the Court at Rajkot for service.

Mr. M.O. Shah the learned advocate for the Respondent has strongly relied upon Rule 10, which says that the service of summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court. And he contends that the conditions of this Rule have been satisfied inasmuch as the Defendant has received a copy of the summons, which is signed by the authorised officer and sealed with the seal of the Court. But this Rule contemplates personal service which is made clear by reading this Rule along with Rules 12 and 15. He has also tried to propound a general proposition that a due service means any receipt of summons containing all the ingredients required by law if such receipt is within sufficient time to enable the Defendant to appear in Court. But I must repel this broad proposition of law that a mere receipt of summons by the Defendant without being served in the manner prescribed by law is due service. The words ''duly served'' have been used in Order 9, Rule 113 as also in Articles 164 and 169, Limitation Act. They have not been Refined anywhere; but appears to me clear by Reference to the basic Section 27 of the Code that due service can only be service effected in the manner prescribed by the Code. In - Gyanammal Vs. Abdul Hussain Sahib, , it was held:

It cannot be said in all cases of personal service on a Defendant that because the return is that the summons has been served personally, it has been duly served and so the Defendant cannot get an ex parte decree against him set aside. It is open to a Defendant in such circumstances to show that the summons in the suit was not really served upon him but upon somebody else, or that what was served upon him was not the summons in the suit, or that it did not give the correct date or some other essential information about the suit, or that it was not accompanied by a copy of the plaint in the suit concerned so that although in a sense he was personally served, he was not provided with the knowledge of the claim against him, which is the object of the service. All these and similar allegations are open to him even if there is a record that he has been personally served.

And I may add that a fortiori it is equally open to him to show that the Court had no power to issue summons by post, as in, the present case. The mere fact that he might have come to know of the filing of the suit or might have received summons does not amount to due service. Else, if a bailiff throws a summons in the house of the Defendant in his absence and the Defendant on return picks it up, he would be deemed duly served as he would have knowledge of the suit and the date of hearing. There is considerable authority for the proposition that even when the Defendant refuses service of summons and the bailiff does not affix a copy of the summons upon the outer door of the Defendant''s house, such service is not good service.

I may also refer to a Rangoon decision in - K.K.N.K.A.R. Chettyar Firm v. Aga M. Sheerazee AIR 1939 Rang 436(B), wherein It was observed that the expression ''due service of summons'' in Article 164, Limitation Act and Order 9, Rule 13, Code of Civil Procedure, meant not only that the summons was served in proper form according to the directions laid down in the Code but also'' that the summons was served under circumstances which enabled the Court to be satisfied that the Defendant had knowledge of the decree, against him, except of course in the case where" the Defendant had purposely put it out of his power to have such knowledge. The primary condition that the, summons must be served in the proper form according to the directions prescribed in the Code must in all cases be satisfied. The object of service of summons as observed by some High Courts is that the Defendant may be informed of the institution of the suit in due time before the date fixed for hearing, but It does not necessarily follow that whenever the Defendant knows of the institution of the suit and the date fixed for hearing in sufficient time, he must be deemed to have been duly served, apart from the question whether the manner of ser" vice of summons as prescribed by the Code is carried out or not.

I am therefore clearly of the opinion that'' in the present case the Defendant, could not he said to have been duly served within the meaning of Order 9, Rule 13. The record also does not any Order of the Court authorising service summons by post and, not in the ordinary. There is no application by the Plaintiff for ordering such service. It is not understood how the summons was sent by post in the very first instance. Service by post as observed by the Bombay High Court in - Sunder Spinner v. Makan Bhula AIR 1922 Bom 377 (1)(C) is at any time a poor substitute for personal service. The Saurashtra High Court has advisedly refrained from amending Order 5 to provide for service by post in view of the backward conditions prevailing in the State, which has emerged as an unified State only recently. The other High Courts which have made amendments have been careful to provide limitations to service by post. Some have confined it to places which are the headquarters of a District or Taluka or where there is regular daily postal service and even when postal acknowledgment purporting to be signed by the Defendant is received, it is only prima facie proof of service. The Peshawar Court has gone to the length of providing that if the Defendant does not appear at the date of hearing in Court, the Court should serve him in the ordinary way, the sending of summons by post being only an attempt at service. The Courts in Saurashtra should be very careful in Ordering service by post even when authorised by the Code bearing in mind the above remarks of the Bombay High Court that service by post is at any time a poor substitute for personal service.

As the Defendant has not been duly servea he is entitled to get the decree set aside, apart from the question whether there was sufficient cause for his non-appearance on the date of hearing. This finding is however subject to the question of limitation that the Defendant should have filed his application for setting aside the ex-parte I decree within 30 days of his knowledge of the decree. The onus of proof no doubt lies upon the Defendant as the application was admittedly filed more than 30 days of the passing of the decree. He has filed his affidavit showing that he came to know of the decree on 20-6-1951 and he did not know anything about the decree before. This statement taken along with the fact on the record that the Court''s notice informing him of the passing of the decree was received by Ratilal, his clerk, on 20-6-51 leaves no doubt that he came to know from this source. He had already sent a letter to the Court with a stamped envelope for information of the adjourned date and he was presumably awaiting a reply from the Court in ordinary course; so that it cannot be inferred that he knew of the decree before he received information from the Court on 20-6-51.

In view of this finding, it is not necessary for me to consider the alternative case whether the Defendant had shown sufficient cause for non-appearance. If he is held to have been duly served, the application was time-barred unless the Court condoned delay u/s 5, Indian Limitation Act, which has been applied to an application under Order 9, Rule 13, Code of Civil Procedure, by an amendment of the Saurashtra High Court. The result is that this appeal is allowed and the Order of the learned Assistant Judge is set aside. The application of the Defendant to set aside the ex-parte decree is granted and the suit is restored to the file to be disposed of in accordance with law. In view of the peculiar circumstances of the case I make no Order as to costs.