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Report No. 140

4.3. A Gauhati case.-

The first case to be noted is from Gauhati.1 In this case, the summons had been stated to have been refused by the defendant. The postal peon deposed that he had tendered the envelope which was refused by the defendant (addressee). An ex parte decree for ejectment was passed. The defendant, in the application to set aside the ex parte decree, maintained that no summons was received by him, either by post or otherwise; and added that during the relevant time, he was away from Assam and was living in Bihar, at his permanent home, in order to attend to his ill father.

The trial court, dealing with this application, found that the summons was not duly served and set aside the ex parte decree. Revision against the trial court's judgment was dismissed by the High Court. Incidentally, in this case, there was a controversy as to whether the original plaintiff was bound to pray to the court for the opening of the envelope received back through post and to adduce evidence to the effect that the summons, as sent, actually related to the original suit itself. This not having been done, the High Court held that Order V, rule 17A(2) had not been completely compiled with.

1. Gopal Ch. Kalita v. Chiddi Sau, AIR 1982 Gau 61 (62), para. 4 (S.M. Ali, J.).

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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