Singh & Anr Vs. Roman Catholic Mission  Insc 425 (3
Sabharwal & H.K. Sema Sema,J
sole question that falls for consideration in this appeal is, whether the
service of notice sent by registered post with acknowledgement card in terms of
Order 5 second proviso to Rule 19A of the Code of Civil Procedure read with
Section 27 of the General Clauses Act, 1897 can be accepted as a sufficient
appeal filed by the defendants (judgment debtors) arises out of the following
material facts. Suit No 473 of 1985 filed by the landlord ended in passing of
an ex-parte decree by the Trial Court on 30.5.1986. The appellants preferred an
application on 6.10.1986 under Order 9 Rule 13 for setting aside the ex-parte decree
which was rejected by the Trial Court. Their appeal before the appellate court
and revision petition before the High Court ended without any success. It appears,
initially the plaintiff (respondent herein) could not deposit the requisite
process fee for which the summons could not be issued to the
appellants-defendants. On 2.4.1986, the Trial Court ordered the summons to be
issued to the defendants, both by ordinary process and by registered post, and
the case was adjourned to 30.4.1986. On a perusal of the record, and not
disputed by the parties, we find that the registered notices were issued to the
defendants vide 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
was adjourned to 30.6.1986 awaiting the receipt of the service report. On
30.6.1986, the Trial Court again ordered that fresh summons both by ordinary
post and registered post be issued within three days. The Trial Court also
ordered substituted service by resorting to Order 5 Rule 20 C.P.C. by
publication of summons in local daily "Dainik Bhaskar". On 5.8.1986,
it appears that a notice of publication in daily newspaper "Aacharan"
instead of "Dainik Bhaskar" as ordered by the Court has been
produced. This is one of the grievances of the appellants, which we shall be
dealing at appropriate place. On 22.8.1986, the Trial Court passed an order to proceed
ex-parte and fixed the case for 4.9.1986 for evidence of the plaintiff. As the
date fixed - 4.9.1986 was declared a public holiday, the plaintiff's witness
was examined on 5.9.1986 and the ex-parte judgment and decree was passed on
30.9.1986. It is stated that the appellants came to know of the ex-parte decree
on 1.10.1986 and filed an application on 6.10.1986 for setting aside the ex-parte
decree, as noticed above.
counsel for the appellants contended that the Trial Court has acted in
violation of the procedure prescribed under Order 5 of the Code of Civil
Procedure, in issuing summons to the defendants. He further contended that the
substituted service can be resorted to only when the court is satisfied that
the defendant is avoiding the service or the service cannot be effected in an
ordinary way. The Trial Court having not passed any order about the satisfaction
as envisaged under the Code, it was not open to the Trial Court to order for
substituted service. This submission need not detain us any longer. On the
facts of the case the court's satisfaction is implicit in the order directing
service by publication.
9 Rule 13 of Code of Civil Procedure insists that the applicant must satisfy
the court two conditions
the summons was not duly served and
the applicant was prevented by any sufficient cause from appearing before the
court when the suit was called on for hearing. In the present case second
condition is not attracted.
the contention of the counsel for the appellants that the summons were not duly
served, as the substituted service has been published in the local daily "Aacharan"
instead of "Dainik Bhaskar", we may point out that it is in the
evidence on record that both "Aacharan" and "Dainik Bhaskar"
are the local dailies and are widely circulated in the area. In ordinary
circumstances, if both the local dailies are widely circulated in the area the
change of the name of the local daily from "Dainik Bhaskar" to "Aacharan"
would not materially affect the service of notice by way of substituted
service, deemed to have been served, and would not invalidate the effect of substituted
service just because the notice for substituted service has been published in
the local daily which is not ordered by the court. It is the specific
contention of the plaintiff-respondent that the notice has been published in
the local daily "Aacharan" on 9.8.1986 and the said local daily is
widely circulated in the area and the substituted service would construe as
sufficient notice upon the defendants. We are also of the view that it is
inherently probable that publication in the local daily "Aacharan"
which is widely circulated in the area would have constituted a sufficient
notice to the defendants.
the Trial Court the stand taken by the plaintiff was that the defendants had
knowledge about the suit filed by the plaintiff and they had sufficient time to
appear and answer the plaintiff's claim but they did not appear and the
application had been filed with intention to cause the delay.
that as it may, we are of the view that the publication of the substituted
service in the local daily "Aacharan" instead of "Dainik Bhaskar"
is a mere irregularity in service of summons.
proviso to Order 9 Rule 13 casts an embargo on the court that a decree passed
ex-parte shall not be set aside merely on the ground that there has been an
irregularity in the service of summons.
5, proviso to sub-rule (2) of Rule 19A of C.P.C. provides that where the
summons are properly addressed, prepaid and duly sent by registered post with
acknowledgement due, notwithstanding the fact that the acknowledgement having
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, the Court
shall presume that notice is duly served. Further, Section 27 of the General
Clauses Act, 1897 (in short 'Act) provides similar provision. The presumptions
are rebuttable. It is always open to the defendants to rebut the presumption by
leading convincing and cogent evidence.
nobody's case that the postal addresses of the defendants are not properly
addressed and, therefore, the registered summons could not be served. It is
also nobody's case that the registered summons are not pre-paid and not duly
sent. In fact the registered summons, bearing receipt Nos.875 and 876 dated
24.4.1986, were issued is borne out from the record.
it is proved that summons were sent by registered post to a correct and given
address, the defendants' own conduct becomes important.
the Trial Court, the appellants were allowed to lead evidence in support of their
contentions. An order to this effect was passed by the Trial Court on
11.1.1991. The premises in question is occupied by two defendants jointly - Hari
Singh and Basant Singh. Hari Singh appeared and examined himself stating that
he did not receive the registered letter.
the defendant Basant Singh did not appear and no evidence whatsoever, on his
behalf, has been led to rebut the presumption in regard to service of summons
sent to him under registered post with acknowledgment due. His own conduct
shows that the registered summons had been duly served on him. As already
noticed, Hari Singh appeared and save and except the bald statement that
registered letter was not tendered to him, no evidence whatsoever was led to
rebut the presumption. He could have examined the postman, who would have been
the material witness and whose evidence would have bearing for proper
adjudication. He has failed to discharge the onus cast upon him by the Statute.
This apart, it is inherently improbable that the registered summons were duly
served on Basant Singh but not to Hari Singh when they occupied the tenanted
noticed above, the registered summons were sent to Basant Singh and Hari Singh
vide postal receipt Nos. 875 and 876 dated 24.4.1986 on the correct and given
address is borne out from the record. Ex-parte proceedings were ordered on
22.8.1986 and ex-parte decree was passed on 30.9.1986.
facts and circumstances as noticed above, this appeal is devoid of merit and it
is, accordingly, dismissed. No costs.