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2003 (2) JLJ 37
(SUPREME COURT)
Y.K. Sabharwal and H.K. Serna, JJ.
Basant Singh and another v. Roman Catholic Mission
Civil Appeal No. 6489 of 2002; against the order of M.P. High Court passed in Civil Revision No. 416 of 1998;
Decided on 3.10.2002.
The sole question that falls for consideration in this appeal is whether the service of notice sent by registered post with acknowledegement card in terms of Order 5 second proviso to Rule 19A of the Code of Civil Procedure read with section 27 of the General Clauses Act, 1897 can be accepted as a sufficient notice. [Para 2
Held: Order 5, proviso to subd`rule (2) of Rule 19A, CPC provides that where the summons are properly addressed, prepaid and duly sent by registered post with acknowledgement due, notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons, the Court shall presume that notice is duly served. Further, section 27 of the General Clauses Act, 1897 (in short "the Act") provides similar provision. The presumptions are rebuttable. It is always open to the defendants to. rebut the presumption by leading convincing and cogent evidence. [Paras 9 & 11
(2) Civil P.C., 1908 -- O. 5, R. 20 -- issue of summons by substituted service -- satisfaction of the Court as to avoidance of summons and non-service of defendant in ordinary way -- is implicit in the order directing service by publication. [Para 4
(3) Civil P.C., 1908 -- O. 5 R. 20 and O. 9 R. 13 -- service by publication in daily newspaper -- not affected because of change of paper if the circulation of both the dailies is wide enough n no plea of non-service of summons can be taken.
In ordinary circumstances, if both the local dailies are widely circulated in the area, the change of the mime of the local daily from Dainik Bhaskar to Aacharan would not materially affect the service of notice by way of substituted service, deemed to have been served, and would not invalidate the effect of substituted service just because the notice for substituted service has been published in the local daily which is not ordered by the Court. It is the specific contention of the plaintiffd`respondent that the notice has been published in the localy daily Aacharan on 9.8.1986 and the said local daily is widely circt11ated in the area and the substituted service would construe as sufficient notice upon the defendants. We are also of the view that it is inherently probable that publication in the local daily Aacharan which is widely circulated in the area would have constituted a sufficient notice to the defendants. [Para 6
(4) Civil P.C., 1908 -- O. 9 R. 13 proviso II and O. 5 R. 20 -substituted service by publication _: newspaper changed -- it is a mere irregularity in service of summons -- decree passed ex parte cannot be set aside.
The publication of the substituted service in the local daily Aacharan instead of Dainik Bhaskar is a mere irregularity in service of summons. [Para 7
Second proviso to Order 9 Rule 13 casts an embargo on the Court that a decree passed ex parte shall not be set aside merely on the ground that there has been an irregularity in the service of summons. [Para 8
¼1½ flfoy çfØ;k lafgrk] 1908&vk-5 fu-19d¼2½ ijarqd&lk/kkj.k [kaM vf/kfu;e] 1897&/kkjk 27&leu jftLVªhÑr Mkd ls lgh irs ij Hksts x,&30 fnu ds i‘pkr~ rkehy dh mi/kkj.kk&[kaMuh; gS&[kaMu ugha fd;k tk, rc&rkehy lE;d :i ls dh xbZ le>h tk,xhA
bl vihy esa fopkjkFkZ ,dek= ç‘u ;g gS fd D;k lk/kkj.k [kaM vf/kfu;e] 1897 dh /kkjk 27 ds lkFk ifBr flfoy çfØ;k lafgrk ds vkns‘k 5 fu;e 19d ds f}rh; ijarqd ds vuqlkj jlhnh jftLVªhÑr Mkd }kjk lwpuk dh rkehy i;kZIr lwpuk ds :i esa Lohdkj dh tk ldrh gS\ ¼iSjk 2½
vfHkfu/kkZfjr % flfoy çfØ;k lafgrk ds vkns‘k 5 fu;e 19d ds mifu;e ¼2½ ds ijarqd esa micaf/kr gS fd tgk¡ leuksa ij mfpr irk fy[kk gS] muds fy, igys ls Mkd eglwy dk lank; dj fn;k gS rFkk og jlhnh jftLVªhÑr Mkd }kjk lE;d :i ls Hksts x, gSa] ogk¡ bl rF; ds gksrs gq, Hkh fd jlhn [kks xbZ gS vFkok xyr LFkku ij pyh xbZ gS] vFkok vU; fdlh dkj.ko‘k leu tkjh gksus ds fnukad ls rhl fnu ds Hkhrj U;k;ky; dks çkIr ugha gqbZ gS] U;k;ky; }kjk mi/kkj.kk dh tk,xh fd lwpuk dh lE;d~ rkehy gks xbZ gSA blds vfrfjDr] lk/kkj.k [kaM vf/kfu;e] 1897 dh /kkjk 27 esa le:i mica/k gSA mi/kkj.kk,¡ [kaMuh; gSA çfroknh lnSo fo‘oklksRiknd rFkk fu‘pk;d lk{; is‘k dj mi/kkj.kk dk [kaMu dj ldrk gSA ¼iSjk 9 ,oa 11½
¼2½ flfoy çfØ;k lafgrk] 1908&vk-5 fu-20&çfrLFkkfir rkehy }kjk leu tkjh fd;k tkuk&lkekU :i ls leu ls cpus ds rFkk çfroknh ij rkehy ugha gksus ds ckjs esa U;k;ky; dk lek/kku&çdk‘ku }kjk rkehy funsf‘kr djus ds vkns‘k esa foof{kr gSA ¼iSjk 4½
¼3½ flfoy çfØ;k lafgrk] 1908&vk- 5 fu- 20 rFkk vk- 9 fu- 13&nSfud lekpkji= esa çdk‘ku }kjk rkehy&lekpkji= cnyus ls çHkkfor ugha gksrh ;fn nksuksa nSfudksa dk forj.k i;kZIr :i ls foLr`r gS&leu dh rkehy ugha gksus dk vfHkokd ugha fd;k tk ldrkA
lkekU; ifjfLFkfr;ksa esa] ;fn nksuksa LFkkuh; nSfud lekpkji=ksa dk ml {ks= esa forj.k foLr`r gS rc nSfud HkkLdj ls vkpj.k ls LFkkuh; nSfud ifjorZu ls] rkehy dh xbZ le>h xbZ çfrLFkkfir rkehy }kjk lwpuk dh rkehy lkjoku~ :i ls çHkkfor ugha gksxh rFkk mlls çfrLFkkfir rkehy dsoy blfy, vfof/kekU; ugha gks tk,xh fd çfrLFkkfir rkehy dh lwpuk ml LFkkuh; nSfud esa çdkf‘kr dh xbZ gS ftldk U;k;ky; }kjk vkns‘k ugha fd;k x;k FkkA oknh&çR;FkhZ dk fofufnZ"V ladFku gS fd lwpuk 9-8-1986 dks LFkkuh; nSfud vkpj.k esa çdkf‘kr dh xbZ gS rFkk mDr LFkkuh; nSfud dk bl {ks= esa foLr`r forj.k gksrk gS rFkk çfrLFkkfir rkehy dk vFkkZUo;u çfroknhx.k dks i;kZIr lwpuk ds :i esa gksxkA gekjh Hkh ;g jk; gS fd ;g varfuZfgr% :i ls laHkkO; gS fd LFkkuh; nSfud vkpj.k esa] ftldk bl {ks= esa foLr`r forj.k gksrk gS] çdk‘ku çfroknhx.k dks i;kZIr lwpuk jgh gksxhA ¼iSjk 6½
¼4½ flfoy çfØ;k lafgrk] 1908&vk-9 fu-13 ijarqd nks rFkk vk-5 fu-20&çdk‘ku }kjk çfrLFkkfir rkehy&lekpkji= cny x;k&;g leu dh rkehy esa vfu;ferrk ek= gS&,di{kh; ikfjr fMØh vikLr ugha dh tk ldrhA nSfud HkkLdj ds LFkku ij LFkkuh; nSfud vkpj.k esa çfrLFkkfir rkehy dk çdk‘ku leu dh rkehy esa vfu;ferrk ek= gSA ¼iSjk 7½
vkns‘k 9 fu;e 13 ds f}rh; ijarqd esa U;k;ky; ij ;g çfrjks/k ykxw fd;k x;k gS fd ,di{kh; ikfjr dh xbZ fMØh dsoy bl vk/kkj ij vikLr ugha dh tk,xh fd leu dh rkehy esa vfu;ferrk gqbZ gSA ¼iSjk 8½
Serna, J. -- 1. Leave granted.
2. The sole question that falls for consideration in this appeal is whether the service of notice sent by registered post with acknowledegement card in terms of Order 5 second proviso to Rule 19A of the Code of Civil Procedure read with section 27 of the General Clauses Act, 1897 can be accepted as a sufficient notice.
3. The appeal filed by the defendants (judgment-debtors) arises out of the following material facts. Suit No. 473 of 1985 filed by the landlord ended in passing of an ex parte decree by the trial Court on 30.5.1986. The appellants preferred an application on 6.10.1986 under Order 9 Rule 13 for setting aside the ex parte decree which was rejected by the trial Court: Their appeal before the appellate Court and revision petition before the High Court ended without any success. It appears, initially the plaintiff (respondent herein) could not deposit the requisite process fee for which the summons could not be issued to the appellant defendants. On 2.4.1986, the trial Court ordered the summons to be issued to the defendants, both by ordinary process and by registered post, and the case was adjourned to 30.4.1986. On a perusal of the record, and not disputed by the parties, we find that the registered notices were issued to the defendants vide postal receipts No. 875 and 876 dated 24.4.1986. As on 30.4.1986, summons issued by registered posts were not received back, the case was adjourned to 30.6.1986 awaiting the receipt of the service report. On 30.6.1986, the trial Court again ordered that fresh summons both by ordinary post and registered post be issued within three days. The trial Court also ordered substituted service by resorting to Order 5 Rule 20 CPC by publication of summons in the local• daily Dainik Bhaskar. On 5.8.1986, it appears that a notice of publication in the daily newspaper Aacharan instead of Dainik Bhaskar as ordered by the Court has been produced. This is one of the grievances of the appellants, with which we shall be dealing at appropriate place. On 22.8.1986, the trial Court passed an order to proceed ex parte and fixed the case for 4.9.1986 for evidence of the plaintiff. As the date fixed -- 4.9.1986, was declared a public holiday, the plaintiff's witness was examined on 5.9.1986 and the ex parte judgment and decree was passed on 30.9.1986. It is stated that the appellants came to know of the ex parte decree on 1.10.1986 and filed an application on 6.10.1986 for setting aside the ex parte decree, as noticed above.
4. Learned counsel for the appellants contended that the trial Court has acted in violation of the procedure prescribed under Order 5 of the Code of Civil Procedure, in issuing summons to the defendants. He further contended that the substituted service can be resorted to only when the Court is satisfied that the defendant is avoiding the service or the service cannot be effected in an ordinary way. The trial Court having not passed any order about the satisfaction as envisaged under the Code, it was not open to the trial Court to order for substituted service. This submission need not detain us any longer. On the facts of the case the Court's satisfaction is implicit in the order directing servIce by I publication.
5. Order 9 Rule 13 of the Code of Civil Procedure insists that the applicant must satisfy the Court two conditions (a) that the summons was not duly served, and (b) that the applicant was prevented by any sufficient cause from appearing before the Court when the suit was called on for hearing. In the present case the second condition is not attracted.
6. Regarding the contention of the counsel for the appellants that the summons were not duly served, as the substituted service has been published in the local daily Aacharan instead of Dainik Bhaskar, we may point out that it is in the evidence on record that both Aacharan and Dainik Bhaskar .are local dailies and are widely circulated in the area. In ordinary circumstances, if b
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