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Report No. 140

2.5. Observations in a Madras case.-

The matter was considered at some length in the above Madras case and the court laid down the correct position in paragraph 7 of the judgment as under1 (Where the court was concerned with the Madras amendment):

"Service through registered post can be taken as due service only when the party responds to it or at least acknowledges receipt of the summons so served. There is sound reason behind restricting the efficacy of postal service to a case of acceptance of service alone. It cannot be ruled out as impossible that an indifferent or dishonest postman might, even without going near the defendant return the registered letter as refused. The court will then have no effective sanction or control over him.

For one thing, the person who can complain against the failure of the postman to deliver the letter being the defendant himself and ex concessi he would not be aware of the misconduct of the postman; there will be no other person who will be interested in complaining to the court. Secondly, the Court will have no effective supervision over the service by the postman as it has over its own process servers. Undue dependence on the efficacy of postal service might even encourage fraud in the service of process.

The rule makes it obligatory that there should be an attempt at personal service before the procedure under rule 19 of Order V, C.P.C. is adopted. If the defendant does not accept service by post, the Court will have no alternative but to send summons through its process servers. This was the view taken by Panchapakesa Ayyar, J. in (1958) 2 Mad LJ 143: AIR 1958 Mad 522, following the earlier decision of Rajamannar, C.J. in (1956) 2 Mad LJ 86."

1. Pichai Animal v. Vellayya Thevar, AIR 1963 Mad 198 (200), para. 7 (DB).

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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