The declaration of the process server, duly endorsed by the Nazir, in view of the amended provision of Order 5 Rule 19 A of the CPC, is admissible as evidence of the service or attempted service of the summons.

JUDGMENT :

(Siddhartha Roy Chowdhury, J.) :

1. This application challenges the order dated 21st July, 2007, passed by learned Additional District Judge, Barrackpore, in Misc. Appeal No. 56 of 2007, affirming the Order No. 48 passed by learned Trial Court in Title Suit No. 177 of 1998.

2. Briefly stated, the petitioner is a premises tenant under the opposite party in respect of a shop room at premises no. 53/50 Kali Charan Ghosh Road at a monthly rental of Rs. 140/-payable according to English Calendar month. The opposite party landlord filed a suit for his eviction. It is alleged that summon was not served upon the petitioner. Being informed by one of his well-wishers, the petitioner came to know about the proceeding. He engaged an Advocate and after obtaining information slip that the suit was decreed on 7th November 2000. The petitioner filed an application under Order IX Rule 13 of the Code of Civil Procedure which was dismissed by learned Trial Court, overlooking the fact that no summon was served upon the petitioner. Feeling aggrieved by the order of learned Trial Court the petitioner preferred an appeal before the learned Additional District Judge, which was registered as Miscellaneous Appeal No. 56 of 2007. But the appeal was not accepted and dismissed. Hence this lis.

3. Mr. Kushal Chatterjee, learned Counsel for the petitioner submits that the petitioner had no notice of institution of the suit and therefore was precluded from entering into appearance to contest the suit. It is contended that learned Trial Court committed jurisdictional error in rejecting the prayer of the petitioner, so made in the proceeding under Order IX Rule 13. Mr. Chatterjee invites the attention of the Court to the provisions as laid down under Order V Rule 9, 16, 17, 18 and 19 of the Code of Civil Procedure and submits that the provisions thereof had been followed by learned Trial Court, in the breach, rendering thereby the order impugned vulnerable, which even the learned Appellate Court failed to appreciate. It is vehemently argued that under Order IX Rule 6 of the Code of Civil Procedure it is mandatory to prove that the summon was duly served upon the petitioner/defendant following the procedure laid down under Order V Rule 16, 17, 18, 19 of the Code of Civil Procedure. The provision of Order V Rule 17 of Civil Procedure Code was not followed by the process server and also there was no compliance of Rule 19. According to Mr. Chatterjee procedural law laid down under Order V Rule 17 and Rule 19 of the Code of Civil Procedure are mandatory in nature for the purpose of proving the due service of summon. To buttress his point Mr. Chatterjee relies upon the decision of the Court and Bench of this Court pronounced in Shiba Prashad Saha vs. Gordon Mohon Saha reported in (2011) 4 CHN 195 and the judgement of Hon’ble Apex Court in Sushil Kumar Savarwal vs. Gurpreet Singh & Ors. reported in (2002) 5 SCC 377. It is further submitted by Mr. Chatterjee that in the case at hand the postal peon made an endorsement that he visited the address of the petitioner for couple of days and ultimately the article was refused. While the narrative of the process server in his report is different. The report of the process server should be given precedence over the report of the postal authority, as held by Hon’ble Apex Court in the case of Salem Bar Association vs. Union of India reported in (2005) 6 SCC 344.

4. It is contended further by Mr. Chatterjee that when the petitioner submitted before the learned Trial Court on oath that no summon was served upon him, learned Trial Court should have refused to accept the report of the process server as it was not supported by an affidavit. In view of the judgement of Hon’ble Supreme Court pronounced in the case of Sushil Kumar Shabharwal (supra) the onus was upon the opposite party/plaintiff to prove the due service but learned Trial Court committed jurisdictional error by shifting the burden upon the petitioner defendan