Report No. 140

4.8. Mulla's view.-

lt would be desirable to point out that the editor of the fourteenth edition of Mulla's Code of Civil Procedure1 has noticed the hardship resulting from the mandatory presumption in Order 5, rule 19A. This is the comment in the 14th Edn.:-

"Under this sub-rule, a simple endorsement by a postal employee that registered packet was tendered to the defendant or his agent but was refused is made sufficient evidence of service. Further, if the summons has been properly addressed and sent by registered post A.D. the Court must make the declaration that the dependant has been served although the acknowledgment has been lost or mislaid or has not been received within 30 days from the date of the issue of the summons. This part of the sub-rule is drastic for, if the postal employee makes a wrong endorsement, the onus of proving the negative that he was not served would be on the defendant. No report of service by the postal employee is provided for as it is done in the sub-rule 17."

1. Mulla Code of Civil Procedure, 14th Edn., revised by J.M. Shelat, (1984), Vol. 2, p. 954.

(Emphasis added)