1986 Supreme(MP) 651

IN THE HIGH COURT OF MADHYA PRADESH
S.K. Seth, J.
Harnam Singh - Appellant
Vs.
Durga General Stores - Respondent
M. A. No. 103 of 1981 (J)
Decided On : 23-03-1986

Headnote:(1) Civil Procedure Code, 1908 – O. 5, R. 19 – A (1) and (2) – service by registered post under R. 19 – A (1) is simultaneous with general mode of service – service not effected by general mode – provision under R. 19 – A (2) not attracted.

       (2) Civil Procedure Code, 1908 – O. 9, R. 13 and O. 5, R. 19 – A (2) – no general mode of service of summons effected – exparte decree on basis of service under O. 5, R. 19 – A cannot be passed.

        Short Note

       1. On coming to know about the exparte decree passed against them, the defendants made an application under Order 9, rule 13 of the Code of Civil Procedure for setting aside the same on 15 – 12 – 1979. It was denied by them that any postal letters containing the summons had been tendered by the postman to them and were refused by them. It was submitted by them that as there was no service of summons on them, the exparte decree passed against them was liable to be set aside. The application was opposed by the plaintiffs. The Court vide its order dated 24 – 2 – 1981 dismissed the application on the ground that from the endorsements of refusal made by the postman on the postal letters containing the summons it followed that the summons had been duly served on the defendants. It is being aggrieved by the said order that the defendants have filed this miscellaneous appeal in this Court under O. 43. R. 1 of the Code of Civil Procedure. On the other hand, the plaintiffs were not fully satisfied with the exparte decree dated 16 – 11 – 1979 passed in their favour. According to them, there was no justification for the Court having disallowed their claim for interest amounting to Rs. 10,640/ – . Accordingly, they filed an appeal under section 96 of the Code of Civil Procedure in this Court for modification of the decree passed by the trial Court. The said appeal was First Appeal No. 90 of 1980 as mentioned in the beginning.

       2. Held : It is to be noted that as far as the procedure relating to service of summons by post is concerned, the old rule 19 – A of Order 5, has been omitted by the Amending Act 1976 in view of the enactment of the new rule 19 – A. The new rule provides for the simultaneous issue of summons for service by post in addition to the personal service as provided in rules 9 to 19.

       3. Now, sub – rule (1) of new rule 19 – A lays down that the Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due, addressed to the defendants of his agent empowered to accept the service, at the places where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain. The proviso appended to sub – rule (1) is not relevant for our present purpose. Sub – rule (2) of rule 19 – A lays down that when an acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant. The proviso appended to sub – rule (2) is also not relevant for our present purpose.

       4. Needless to say, sub – rule (2) of rule 19 – A is essentially interlinked with sub – rule (1) of the said rule and cannot be read independently of the said sub – rule. It is only in a case in which the Court has directed the simultaneous issue of summons for service by post in addition to the personal service under sub – rule (1) of rule 19 – A that in the event of the postal article containing the summons having been received back by it with the endorsement of refusal purporting to have been made by the postman the Court can declare that the summons had been duly served on the defendants under sub – rule (2) of the said rule.

       5. In the present case, as mentioned above, the summons that had been issued by the Court by ordinary course on 20 – 2 – 1979 were not received back either served or unserved by 23 – 4 – 1979. On the said date, the order that was passed by the Court was not for the simultaneous issue of fresh summons for service by post in addition to personal service on the defendants. It was merely to the effect that the summons be served by registered post, acknowledgment due. In the circumstances, it is clear that sub – rule (2) of rule 19 – A was not at all attracted in the matter. In such a situation, merely because the postal letters containing the summons were received back by the Court with an endorsement of refusal purporting to have been made by the postman, the Court was not empowered to make a declaration to the effect that the summons had been duly served on the defendants. Appeal allowed.