Refusal to accept postal notice is not equivalent to due service of summons.

RAMACHANDRA IYER, C.J. :- This civil revision petition is filed by the plaintiff in O. S. No. 113 of 1947 on the file of the Sub-Court, Madurai, against an appellate order (original order having dismissed the application) setting aside an ex parte decree which was passed on 15th April 1958, for mesne profits. The application for setting aside the ex parte decree was filed nearly four months after the decree was passed on the ground that there was no proper service of summons on the defendant who consequently did not come to know of the decree till sometime before he filed the application. It was not disputed that the first summons was sent to the defendant by registered post and was returned with the endorsement that it was refused by the first defendant.

The postman who has been examined as a witness and whose evidence has been accepted by both the Courts below has stated that he tendered the registered cover containing the summons but that the latter declined to accept the same. No fresh summons was issued to the first defendant. The Court accepted the service as sufficient, set the first defendant ex parte and passed the decree The question now is whether mere tendering of summons by the postman would tantamount to due service of summons. The question was answered in the negative in Murugayya Kangiar v. Marudayammal, 1956-2 Mad LJ 86, and Shri Krishna Rice Mills v. Rajagopal Konar 1958-2 Mad LJ 143 : (AIR 1958 Mad 522). Ganapatia Pillai J. before whom this civil revision petition first came up for hearing, had taken a contrary view in C. R. P. No. 762 of 1958, though the learned Judge did not specifically refer then to the two decisions referred to above. As the case involved an important question of procedural law the learned Judge (in this case) referred the matter for decision by a Bench.

2. Service of summons on the defendant is regulated by the provisions of O. V C. P. C. R. 9 thereof, in its original form as it exists in some of the other States, contemplates only personal service of summons. Rule 17 provides that where the defendant refuses to receive summons, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides and carries on business or personally works for gain and shall then return the original summons to the Court with a report of the circumstances under which summons could not be effected in the proper way. Rule 19 provides for a case where summons is returned under the provisions of R. 17. The Court after perusing the report and also, if necessary, examining the serving officer, is empowered to declare that the service was either sufficient or order fresh summons being taking out.

3. In the year 1951, this Court, by virtue of its powers under Sec. 122 C. P. C. introduced sub-clause 3 to R. 9 providing for sending of the first summons by registered post to the defendant. The rule states,

"Where the defendant resides in India, whether within the jurisdiction of the Court in which the suit is instituted or not, the Court may direct the proper officer to cause a summons under this order to be addressed to the defendant at the place where he ordinarily resides or carries on business or works for gain, and sent to him by registered post prepaid for acknowledgment. An acknowledgment purporting to be signed by the defendant shall be deemed to be sufficient proof of servicce of such summons."

4. This Court has also by its circular R. O. C. 3005 of 1948 B-1 dated 1st November 1951 issued to the Sub-ordinate Courts the following instructions.

1. Process in the nature of summons and notices to be served on parties residing beyond a radius of five miles from the Court-house should be served by registered post in the first instance instead of through the process service staff;

5. It will be seen from the terms of the notification that it merely directs that ordinarily the Court should exercise its power under O. V R. 9