Nandkishor Kajriwal and Sons vs M. P. State Textiles Corp.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Advocate Appeared:
For the Appellant : A.R. Shah.

Headnote:(1) Civil Procedure Code, 1908 – O. 5, R. 19 – A – Proviso – presumption of service – rebuttable – defendant denying service on oath – plaintiff not examining postman who served – no acknowledgment due duly signed by defendant produced – presumption rebutted.
       (2) Civil Procedure Code, 1908 – O. 5, R. 19 – A, 21, 9 and 19 – nature of mode of service under R. 19 – A – it is in addition to mode provided under R. 9 and 19 – defendant residing outside – he should be served under R. 21 through the Court of that place.
       (3) Civil Procedure Code, 1908 – O. 9, R. 13 – setfing aside exparte decree – defendant not duly served before passing the decree – decree set aside.
        Short Note
       1. Plaintiffs – respondent filed a suit against the appellant for recovery of Rs. 1,12,000/ – on the basis of certain cloth transactions. Summons were sent by registered post acknowledgment due. Acknowledgments were never received back. The Court, however, held that summons were duly served and passed an exparte decree as defendants did not appear in response to the summons sent to them. Defendants applied for setting aside the exparte decree on the ground that they were never served with summons of the Court and they became aware of passing of the decree when the same was being executed.
       2. In reply plaintiffs pleaded that defendants were properly served in accordance with the amended procedure prescribed under O. 5, R. 19 – A CPC inasmuch as summons under the orders of the Court were sent by registered post on the address, where the defendants carryon their busineS.
       3. Learned District Judge observed that summons were sent by registered post on the postal address of the defendants and it should be presumed that summons were duly delivered to them. He also referred to O. 5, R. 19 – A. CPC and held that the summons which were properly addressed, prepaid and duly sent by registered post should be deemed to have been served even though the acknowledgement was not received by the Court within 30 days from the date of issue of the same.
       4. Held : It is an admitted position that the acknowledgments of the summons, which were sent by registered post, were not received by the Court. Plaintiffs had produced a copy of the letter from the office of the Senior Superintendent, Post Offices, Ujjain, to the effect that the registered letters had been delivered to the addressees mentioned therein.
       5. The contention of the learned counsel for the appellants was that there was non – compliance with the mandatory provision of O. 5, R. 19 – A CPC which required that the Court shall in addition to and simultaneously with the issue of summons provided under rules 9 and 19 also direct summons to be served by registered post acknowledgement due addressed to the defendant at the place where he resided or carried on the busineS. According to the learned counsel the Court did not issue the summons under rules 9 and 19 of O. 5 CPC and had straightway directed summons to be served by registered post. This was contrary and, therefore, no inference about service could be drawn under sub – rule (2) of rule 19 – A. of O. 5 CPC. He further contended that in the absence of an acknowledgment duly signed by the defendant or any endorsement of refusal, as provided under sub – rule (2) of rule 19 – A (ibid) the Court could not draw any inference about proper service.
       6. Learned counsel for the respondents invited my attention to the proviso to rule 19 – A. He contended that in terms of the proviso the Court was competent to hold that the summons had been duly served on the defendants.
       7. Rule 19 – A of O. 5 CPC in terms will not be applicable to this case, because of the mandate contained therein that service of summons by registered post shall be in addition to and simultaneously with the issue of summons for service in the manner provided in rules 9 and 19. Rule 21 of O. 5. CPC provides that summons to a defendant where he resides outside the jurisdiction of the issuing Court has to be sent to the Court having jurisdiction in the place where the defendants reside. Thus, reading rule 19 – A and rule 21 of O. 5 together it appears that proper course for a Court issuing summons to the defendant is to issue a summons for personal service through Court having jurisdictions in the place where the defendant resides and in addition, if considered necessary by the Court, by registered post acknowledgment due.
       8. In any case, it is open to the defendant to displace the presumption of service by registered post by adducing evidence to the effect that he was never served through the agency of the Post Office. In the present case defendant Prakash examined himself and stated on oath that he never received the summons by registered post. Learned District Judge relied upon the report of the Senior Superintendent of Post Offices, Ujjain, but the receipt on the basis of which the Senior Superintendent of Post Offices gave his report was not produced nor signature of defendant Prakash or any other defendant was proved thereon. The postman who delivered the letter and obtained the receipt was not examined nor the report of the Superintendent of Post Offices or the Post Office of delivery was obtained. In view of these facts and circumstances, the presumption envisaged under rule 19 – A of O. 5 was rebutted and the Court below was wrong to hold that the defendants had been properly served with summons of the suit sent by registered post. Appeal allowed.

Nandkishor Kajriwal and Sons vs M. P. State Textiles Corp. - 1983 Supreme(MP) 791