Report No. 140
1.2. The Problem.-
By way of a brief statement of the problem, it may be mentioned that under Order V, rule 19A of the Code of Civil Procedure, the court is required to issue a summons for service by post, in addition to personal service. So far as service by post is concerned, the summons is sent by registered post acknowledgment due, and it is provided that once the acknowledgment purporting to be signed by the defendant (or the agent) is received by the court or the postal article containing the summons is received back by the court with endorsement by the addressee of refusal to take delivery, the court "shall declare" that the summons had been duly served.
Experience of the working of the law relating to service of summons by registered post embodied in Order V, rule 19A of the Code of Civil Procedure as it stands at present, has revealed a number of instances where injustice has been occasioned to a litigant in as much as the concerned provision enjoins to the effect that if an article containing the summons is received back with the endorsement "refused", the court "shall" declare that the summons had been duly served. No discretion is left in the Court as the provision makes it mandatory to make such a declaration.
A number of instances discussed in Chapter IV hereafter have come to light where an unscrupulous postman may make such an endorsement for dishonest reasons or a negligent postman might have tendered the article to a wrong person or a person other than the addressee, and he might have refused to accept the article. In the result, an ex parte decree would have been passed against the addressee by reason of the mandatory declaration that he has been duly served and serious prejudice, at times irreparable, would have been occasioned to him.
1.3. The Commission has, therefore, considered it appropriate in order to promote the interest of justice, to examine the question how the provision should be refashioned, so as to foreclose the likely injustice, and reduce the chances of confusion, without affecting the smooth and quick disposal of court work.
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