(Arising out of S.L.P. (C) No. 25636 of 2004)
Dr. Arijit Pasayat, J..: -
Challenge in this appeal is to the
judgment rendered by a learned Single Judge of the Allahabad High Court
dismissing the appeal filed by the appellant. In the said appeal the
order passed by 11th Additional District & Sessions Judge, Varanasi,
rejecting the application filed by the appellant for restoration of the
appeal in terms of Order XLI Rule 21 of the Code of Civil Procedure,
1908 (for short 'CPC') was rejected.
Background facts in a nutshell are as follows:
Respondent No.1-Munna Lal instituted a suit for specific performance of
the contract dated 6th March, 1992. The agreement was allegedly executed
by Smt. Krishna Devi, mother of the appellant and respondent no.2 who
were the appellants before the High Court. The said Smt. Krishna Devi
expired during the pendency of the suit before the Trial Court.
According to the plaintiff, out of the total sale consideration of
Rupees one lakh, Rs.25,000/- was given on 2nd March, 1992 and another
sum of Rs.15,000/- was given on 6th March, 1992. It was stipulated in
the agreement that the sale deed shall be executed by the Vendor after
she obtained permission from the authorities under the Urban Land
Ceiling Act, 1976 (in short 'ULC Act'). As Vendor failed to execute the
sale deed the suit for specific performance was filed. The suit was
dismissed by the Trial Court on 3rd August, 2002. The judgment and
decree were challenged by respondent no.1 by filing Civil Appeal
no.109/2002. The said appeal was allowed as ex-parte on 11th July, 2003
by the First Appellate Court. An application was filed by the present
appellant and the respondent no.2 to set aside the ex-parte decree
passed by the Courts below. The said application was filed in terms of
Order XLI Rule 21 CPC which was rejected by the First Appellate Court.
The only ground which was urged in
support of the appeal/application as the case may be before the First
Appellate Court and the High Court was that there was no service of
notice through process server or by registered post. It was contended
that the information regarding decision of the appeal came to knowledge
of the appellant before the High Court on 28th July, 2003 when the
notice of caveat application filed before the High Court by respondent
no.1 was received. It was averred that the reports of the process server
were not correct. The notice by registered post was not served. In fact,
there was no refusal as was made out by the plaintiff-respondent no.1.
The postman who was examined clearly stated that there was no refusal by
the appellant and the present respondent no.2.
The First Appellate Court analysed the factual position and placing
reliance on the decision of this Court in State of M.P. v. Hiralal and
Ors. (1996 (7) SCC 523), held that there was valid service of the notice
sent by registered post. Further the evidence of the process server
clearly established that notice has been served. The High Court
dismissed the appeal finding that there was valid service of the notice
regarding hearing of the appeal before First Appellate Court.
In support of the appeal, learned counsel for the appellant submitted
that the First Appellate Court and the High Court clearly proceeded on
erroneous presumption that the appellant and respondent no.2 had refused
to receive the notice. The postman's evidence was not to the effect of
any refusal. In fact, the evidence clearly established that at no point
of time postman met the appellant. The High Court relied on decision
which related to refusal and those decisions were not clearly applicable
to the facts of the present case.
The learned counsel for the appellant further submitted that the
decision in Hiralal's case (supra) has no application to a case where
there is no definite material of refusal. The decision in the said case
was on the basis of the office report indicating that the noticee was
avoiding to receive the notice. In that context this Court held that the
notice has to be treated as sufficient. Further the decision relied upon
by the High Court i.e. Hiralal's case (supra) and Gujarat Electricity
Board v. Atma Ram (AIR 1989 SC 1433) have no application to the facts of
the present case. It was held by this Court that there is presumption of
service of letters sent by registered cover if the same is returned by
postal endorsement that the addressee refused to accept the same, the
presumption is rebuttable and it is open to the party concerned to place
evidence before the Court to rebut the presumption by saying that the
address mentioned on the cover was incorrect or that the postal
authorities never tendered registered letter to him or that there was no
occasion for him to refuse the same. The onus lies on the party
challenging the factum of service.
In response, learned counsel for the
respondent no.1 submitted that the First Appellate Court and the High
Court found that the process server's reports clearly indicated the
service of the notice and about the knowledge of the appellant and
respondent no.2 about the pendency of the appeal. It was, therefore,
submitted that the High Court's judgment does not warrant interference.
In the instant case, the postal endorsement is not to the effect that
the addressee has refused to accept the letter tendered. Similarly, in
M/s Madan and Company v. Wazir Jaivir Chandra (AIR 1989 SC 630) the
effect of endorsements such as "not found", "not in station" or
"addressee has left" was considered. The service of notice of appeal is
required to be done under Order XLI Rule 14 CPC. The same reads as
""Publication and service of notice of day for hearing appeal- (1)
Notice of the day faxed under rule 12 shall be affixed in the Appellate
Court house and a like notice shall be sent by the Appellate Court to
the Court from whose decree the appeal is preferred, and shall be served
on the respondent or on his pleader in the Appellate Court in the manner
provided for the service on a defendant of a summons to appear and
answer; and all the provisions applicable to such summons, and to
proceedings with reference to the service thereof, shall apply to the
service of such notice.
(2) Appellate Court may itself cause notice to be served- Instead of
sending the notice to the Court from whose decree the appeal is
preferred, the Appellate Court may itself cause the notice to be served
on the respondent or his pleader under the provisions above referred to.
(3) The notice to be served on the respondent shall be accompanied by a
copy of the memorandum of appeal.
(4) Notwithstanding anything to the
contrary contained in sub-rule (1), it shall not be necessary to serve
notice of any proceeding incidental to an appeal on any respondent other
than a person impleaded for the first time in the Appellate Court,
unless he has appeared and filed an address for the service in the Court
of first instance or has appeared in the appeal.
(5) Nothing in sub-rule (4) shall
bar the respondent referred to in the appeal from defending it."
Order V Rule 9 of CPC refers to
service of summons. The said provision reads as follows:
"9. Delivery of summons by Court.
(1) Where the defendant resides
within the jurisdiction of the Court in which the suit is instituted, or
has an agent resident within that jurisdiction who is empowered to
accept the service of the summons, the summons shall, unless the Court
otherwise directs, be delivered or sent either to the proper officer to
be served by him or one of his subordinates or to such courier services
as are approved by the Court.
(2) The proper officer may be an officer of a Court other than that in
which the suit is instituted, and, where he is such an officer, the
summons may be sent to him in such manner as the Court may direct.
(3) The services of summons may be made by delivering or transmitting a
copy thereof by registered post acknowledgement due, addressed to the
defendant or his agent empowered to accept the service or by speed post
or by such courier services as are approved by the High Court or by the
Court referred to in sub-rule (1) or by any other means of transmission
of documents (including fax message or electronic mail service) provided
by the rules made by the High Court :
Provided that the service of summons
under this sub-rule shall be made at the expenses of the plaintiff.
(4) Notwithstanding anything
contained in sub-rule (1), where a defendant resides outside the
jurisdiction of the Court in which the suit is instituted, and the Court
directs that the service of summons on that defendant may be made by
such mode of service of summons as is referred to in sub-rule (3)
(except by registered post acknowledgment due), the provisions of rule
21 shall not apply.
(5) When an acknowledgement or any other receipt purporting to be signed
by the defendant or his agent is received by the Court or postal article
containing the summons is received back by the Court with an endorsement
purporting to have been made by a postal employee or by any person
authorized by the courier service to the effect that the defendant or
his agent had refused to take delivery of the postal article containing
the summons or had refused to accept the summons by any other means
specified in sub-rule (3) when tendered or transmitted to him, the Court
issuing the summons shall declare that the summons had been duly served
on the defendant:
Provided that where the summons was properly addressed, pre-paid and
duly sent by registered post acknowledgement due, the declaration
referred to in this sub-rule shall be made notwithstanding the fact that
the acknowledgment having been lost or mislead, or for any other reason,
has not been received by the Court within thirty days from the date of
issue of summons.
(6) The High Court or the District
Judge, as the case may be, shall prepare a panel of courier agencies for
the purposes of sub-rule (1)."
A bare perusal of Order V Rule 9 clearly shows that service through
process of Court is mandatory. This position is clear from the use of
the word "may" in the provision. In the instant case not one but several
process servers have given notice relating to service and their
endorsements were sufficient to show service of the notice relating to
the appeal. Though it was contended by learned counsel for the appellant
that the reports were not correct, the same is not acceptable. No
material was placed before the Trial Court or the High Court to show
that the endorsements made by the process servers were false or
Above being the position, the conclusions arrived at by the First
Appellate Court as affirmed by the High Court do not suffer from any
infirmity to warrant interference.
The appeal fails and is thus
dismissed. There will be no order as to costs.
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