Report No. 38

96. Sections 28 and 29-Court Notices sent by post.-

The following suggestion1, relevant to section 28, was considered by us-

"Sometimes certain notices sent by the Courts or Government Offices are returned back on the plea of non-availability of the parties which indirectly helps the parties in delaying matters or escaping appearance. To avoid such recurrences, in every case of non-delivery or by non-availability of the addressee, it is suggested that a certificate may be obtained from the village Munsif and Sarpanch of that particular place to that effect, and the certificate so obtained may be produced alongwith the letter or notice which is to be returned."

1. S. No. 114 (A State Government).

97. Our conclusion on the point raised in the suggestion1 may be thus summarised-

(a) The necessity of ensuring proper delivery of court notices cannot be denied. It may not, however, be practicable to require the postman to go to a village Munsif (or other corresponding authority), and it is also doubtful if the suggested, provision will improve matters much. Hence, the suggestion could not be accepted in toto.

(b) But, the question of requiring a legibly written endorsement by a higher postal official in the case of all registered articles which are unserved or returned as "refused", was considered by us. We think, that such an endorsement, specifying the name of the postman who gave the report, would be useful, as a safeguard for ensuring that proper efforts were made to effect delivery. We recommend that the rules under section 29 be amended for the purpose. We may note that this recommendation of ours has found the approval of one High Court2, in its comment on the draft Report which we had circulated, and has not been objected to in the other comments.

There should be no special fees for such an endorsement. The intention is, that the fees for registration (which are charged at present) should suffice for this extra facility3.

[With reference to rules under section 28, the following suggestion has been made4:-

"As regards section 28, the suggestion of the Commission in case of non-delivery is acceptable with this proviso that the name of the witness before whom the article is tendered should be mentioned and his signature obtained, wherever possible,"

In our view, this would not be practicable.]

(c) Further, in the case of summonses, notices and other similar documents sent by courts or other authorities empowered to issue them, where they are sent by registered post, a special form should be obtainable by the sender on payment of an extra fee. This would be something like a "declaration" by the postman, analogous to the affidavit of a process-server required under the Civil Procedure Code5.

We recommend, that necessary amendment be made in the rules made under the Post Office Act.

1. Para. 96, supra.

2. S. No. 163 (A High Court).

3. As to the existing facilities for registered articles, see rules 62, 63, 64(1) and 65, Indian Post Office Rules, 1933.

4. S. No. 170 (Comment of a State Government).

5. See Code of Civil Procedure, 1908, Appendix B, Form No.11, prescribed with reference to Order 5, rule 18 (Affidavit of process-server).

98. The comment of a State1 Government as regards our suggestion2 in case of delivery for a declaration by the postal peon was- "the affidavit of the postal peon as in the case of process server under the Civil Procedure Code should be insisted upon so, that it may be evidence in Court till rebutted".

In our view, however, an affidavit would not be practicable in the case of postal peons.

1. S. No. 170 (Comment of a State Government).

2. Para. 97, supra.

99. We have considered these points1 in detail, in view of the fact that service of summons, etc., by post is now increasingly employed2-3.

Occasions for setting aside an ex parte decree on the ground that the defendant did not actually "refuse" the summons served by registered post, often arise4-5, and in the absence of some reliable evidence it is difficult later to prove the refusal. The proposed changes may be of help in bringing some proof into existence.

1. Paras. 96 to 98, supra.

2. Cf. Code of Civil Procedure, 1908, Order 5, Rules 9-10 (as amended locally), Order 5, Rule 20A (as added by local amendments) and existing Order 5, rule 20A(2).

3. See also Twenty-seventh Report of the Law Commission. (Code of Civil Procedure 1908).

4. As to such instances, see (a) Sunder Spinner v. Makan Bhula, ILR 46 Bom 130: AIR 1922 Born 377, and (b) Appibai v. Lakshmi Chand, ILR 1954 Born 243: AIR 1954 Born 137.

5. Also see Butto Kristo v. Govindaram, AIR 1939 Pat 540 (547) (Harries C.J. and Chatterji J.).

100. Reference may also be made to the various statutory provisions as to letters sent by post1-2-3

1. Section 16, Indian Evidence Act, 1872.

2. Section 114, Indian Evidence Act, 1872 [illustration (f)].

3. Section 27, General Clauses Act, 1897.

101. As to service by registered post, the under-mentioned cases may be seen. 1-2-3-4-5-6

1. Teja Singh v. Jaswant, AIR 1935 Lah 171 (172) (0. 5, R. 10, CPO-Lahore).

2. De'Souza (in re:), AIR 1932 All 374 (s. 27, General Clauses Act).

3. Romesh Chandra v. National Tobacco Co., AIR 1940 Cal 36 (537, 538) (s 27 General Clauses Act).

4. Roopchand v. Ranga Lal, AIR 1914 Born 31 (32) (section 27, General Clauses Act).

5. Marihar v. Ram Shastri, AIR 1918 PC 102 (111, 112) (Notice under section 106, Transfer of Property Act).

6. Sundaram v. Sesha Ayar, AIR 1957 TC 208 (0. 5, R. 10, CPC as amended in Travancore-Cochin) (Reviews Bombay cases).