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Report No. 140

Chapter IV

Hardship Resulting from the Present Law

4.1. Hardship resulting from present provision.-

From a study of the case law on the subject, it appears that serious hardship has been caused, in practice, by reason of the mandatory and categorical provision in Order V, rule 19A, which requires the court to declare the summons as having been duly served, in the situation mentioned in that rule. The case law on this point, collected as result of a sample survey, will be set out presently.1 Broadly speaking, the problem has arisen in cases where the registered cover containing the summons has come back with the endorsement of "refusal". An ex parte decree is passed in such a case on the strength of the legal assumption:

(i) that the postman did actually tender the envelope, and

(ii) that the addressee did refuse to accept it.

Later, the party (which is stated to have refused to receive the registered letter), applies to the court to set aside the ex parte decree, and often does succeed in proving, to the full satisfaction of the court, that the cover had not actually been attempted to be delivered. It is obvious, that if the court is directed to make a declaration of proper service in every case, irrespective of the peculiarities of the case, on the basis of a hardship may arise and injustice may be occasioned.

1. Para. 4.2, infra.



Need to amend Order V, Rule 19A of the Code of Civil Procedure, 1908 - Relating to Service of Summons by Registered Post with a view to foreclose Back




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