Back
High Court Of Calcutta
Salil Kumar Datta
DR.MADHUSUDAN PODDAR - Appellant
Versus
ARABINDA PODDAR - Respondent
C. R. 1202 Of 1975
Decided On : 08/05/1977
ORDER 9, RULE 13, CODE OF CIVIL PROCEDURE - SERVICE OF SUMMONS - SUBSTITUTE SERVICE BY REGISTERED POST - REQUIREMENTS - CONCISE STATEMENT OF PLAINT - NECESSITY - INTERPRETATION OF RULE 2, ORDER 5 - EFFECT OF NON-COMPLIANCE.
Fact of the Case:
Plaintiff filed a suit for possession of premises against defendants. Summons served by affixation after refusal. Registered post cards sent as precautionary measure, but returned with endorsement "refused". Defendants did not appear, and an ex parte decree was passed. Defendants applied to set aside the ex parte decree, alleging suppression of summons and fraudulent possession by plaintiff. The Munsif dismissed the application, but the Appellate Court allowed it, holding that there was no proper service of summons.
Finding of the Court:
The High Court held that the service of summons by registered post card was not valid as it was not accompanied by a concise statement of the plaint, as required by Order 5, Rule 2. The Court also held that the first service of summons by affixation was not duly served, as the Mokabila witnesses were not of the locality.
Issues: Whether the service of summons by registered post card was valid without a concise statement of the plaint.
Ratio Decidendi: Order 5, Rule 2 requires that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. The Court held that a concise statement of the plaint is necessary for service by registered post card to be valid, as it is a substitute for the service of summons. The Court also held that the first service of summons by affixation was not duly served, as the Mokabila witnesses were not of the locality.
Final Decision: The High Court discharged the Rule, holding that the service of summons by registered post card was not valid and that the ex parte decree was rightly set aside by the Appellate Court.
Certainly. Based on the provided legal document, here are the key points:
The case concerns the validity of service of summons in a civil suit, specifically whether service by registered post card was valid without a concise statement of the plaint (!) .
The court held that for service by registered post to be valid, it must be accompanied by a concise statement of the plaint, as required by procedural rules (!) .
The initial service attempt by affixation was found to be improperly executed, as the witnesses involved were not from the locality, rendering that service ineffective (!) .
The court emphasized that any subsequent service attempt, such as by registered post, must also comply with procedural requirements, including the necessity of a concise statement of the plaint being sent along with the summons (!) .
In this case, the registered post cards sent to serve the summons did not contain a concise statement of the plaint, which made the service invalid despite the defendants’ refusal to accept the registered post (!) .
As a result, the ex parte decree obtained against the defendants was set aside due to improper service of summons, and the matter was remanded for a proper hearing (!) .
The court clarified that unless there is proper and valid service of summons, a decree based on such service is vulnerable to being challenged and set aside (!) .
The case underscores the importance of strict compliance with procedural rules regarding the service of summons, including the requirement of accompanying documents such as a concise statement of the plaint (!) .
The court also directed that the ongoing suit should be heard with utmost expedition, given the long pendency since 1971 (!) .
These points encapsulate the core legal principles and factual findings from the document without referencing specific case law.
( 1 ) THIS Rule is directed against an order passed by the Appellate Court allowing the Misc. Case under Order 9, Rule 13 of the Code of Civil Procedure. It appears that the plaintiff-petitioner instituted a suit in the Third Court of the Munsif at Sealdah being Title Suit No. 129 of 1971 against the defendants for recovery of possession of the suit premises in their possession. The Summons was served under the ordinary process by affixation on alleged refusal. But on June 17, 1971, the learned Munsif recorded the following order "plaintiff flies Hazira, Summons served. But service is not satisfactory. For better precaution plaintiff to issue R. P. C. upon the defendant by Registered Post with acknowledgment due. " Thereafter registered post cards were attempted to be served on the two defendants at their address given in the plaint but the post cards were returned with the endorsement "refused". The defendants did not appear in the suit and the suit was decreed ex parte on Feb. 4, 1972, It is stated that the decree-holder obtained possession of the suit premises comprising two rooms in the first floor of premises No. 52, Dr. S. P. Mukherjee Road, Dum Dum on Feb. 15, 1973 by breaking open the padlock in execution of the ex parte decree.
( 2 ) ACCORDING to the defendant-opposite parties they came to know for the first time on Feb. 21, 1973, that the padlock on the doors of the rooms had been broken and new padlock had been put in. On making enquiries they came to know that the possession of the two room was taken as aforesaid end thereafter on further enquiry they came to know of the said decree and the execution thereof, On March 16, 1973, they filed an application for setting aside the ex parte decree on the ground that the Summons and all Court processes in the suit were suppressed illegally and the petitioner fraudulently obtained possession of the room in execution of the said decree. On this application Misc. Case No. 38 of 1973 was started which was contended by the plaintiff-decree-holder. The learned Munsif was of opinion that the refusal of the post cards raised the presumption that the defendants were trying to avoid service of summons and considering these circumstances he was not inclined to believe the evidence of P. W. 1 on behalf of the opposite parties denying the service by the process-server or the postal peon. Accordingly, the learned Munsif considering the facts and circumstances of the case accepted the return of the process-server to the effect that service was affected by affixation after refusal of the defendants to accept the same. The registered post cards were sent as precautionary measure and further the post cards contained concise statement of the plaint by setting the names of the parties to the suit described as title suit as also the date of hearing which were also refused. Accordingly the Misc. case was dismissed.
( 3 ) ON appeal the learned Appellate Court was of opinion that there was no service of Summons by the process-server as there was nothing to indicate that the Mokabila witnesses were of the locality which was the ground for believing that the service was not satisfactory. About the service by registered post card the Appellate Court held that it was not a substitute for the service of Summons as it was not accompanied by a copy of the plaint. Reliance was also placed on the decision in M. G. Dua v. Balli Mal Nawal Kishore. The Court held therein that, if any other mode of service was tried in the first instance and it was unsuccessful, it was not open to the Court, in view of the prohibition contained in the proviso to Rule 10, Order V to endeavour to effect service on the defendant by registered post. The Punjab decision, however, should not have been relied as under a proviso added by Punjab High Court to Rule 10 of Order V subsequent service, after failure of first service, cannot be by registered post.
( 4 ) IT is obvious that the learned Munsif was sat
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
