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Madras High Court
Pichai Ammal vs Vellayya Thevar Alias Ochu Thevar on 25 October, 1962
Equivalent citations: AIR1963MAD198, AIR 1963 MADRAS 198, 1976 MADLW 24 ILR (1963) MAD 672, ILR (1963) MAD 672
JUDGMENT Ramachandra Iyer, C.J.
1. This civil revision petition is filed by the plaintiff in O. S. No. 113 of 1947 on the file of the Sufi-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 tiled : 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 endorsem*nt 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 dueservice 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 Order V C. P. C. Rule 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 circ*mstances 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 Rule 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 Section 122 C. P. C. introduced Sub-clause 3 to Rule 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 b8 deemed to be sufficient proof of service 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 Order V Rule 9(3) C. P. C. by issuing process by registered post. The notification does not concern itself with the sufficiency of service of summons in case the addressee were to refuse to accept notice.
6. By Act 66 of 1958 the Union Legislature introduced Rule 20-A into Order V C. P. C. in the year 1956. That provision states:
1. Where, for any reason whatsoever, the summons is returned unserved, the Court may, either in lieu of, or in addition to, the manner provided for service of summons in the foregoing rules, direct the summons to be served by registered post addressed to the defendant or his agent empowered to accept service at the place where the defendant or his agent ordinarily resides or carries on business or personally works for gain.
2. An acknowledgment purporting to be signed oy the defendant or the agent or an endorsem*nt by a postal employee that the defendant or the agent refused to take delivery may be deemed by the Court issuing the summons to be prima facie proof of service." In the order of reference of Ganapatia Pillai J. the learned Judge has indicated his view that refusal on the part of the defendant to accept postal notice issued under the provisions of Order V Rule 9(3) C. P. C. should fie deemed to be as effective a service as a refusal of such notice when personally tendered. Three reasons have been given by the learned Judge to support that view : (1) if such construction were not to be accepted Rule 9(3) of Order V would be ineffective, (2) whatever might be the provisions ot Rule 9(3), the circular of the High Court referred to above is mandatory so far as the subordinate Courts are concerned in that, notice in the first instance should be sent by registered post, and (3) Rule 20-A sub Clause (2) should be regarded as an independent provision of law relating to acknowledgment of postal notice relating not merely to that referred to in sub-clause (2) to that rule but also to notice or summons issued under any other rule under Order V. C. P. C.
7. We shall now consider these three points in theirorder. Rule 9(3) was introduced into Order V of the C. P. C.by a Madras amendment. In terms it confers a poweron the Court to send the first summons in a suit oyregistered post. It further provides that if the service byregistered post is successful, the acknowledgment purportingto be signed by the defendant shall be deemed to besufficient proof for service of such summons. But thereis no provision in the rules to treat the refusal to receivethe postal notice as equivalent to a refusal to receivesummons when tendered personally so as to apply theprovisions of O. V Rule 19 under which alone the servicecan be declared sufficient (barring Order V. Rule 20-A to beconsidered presently). Nor does the provision state thatthe refusal should be deemed to be effective service ofthe registered letter. Rule 17, which prescribes theprocedure when the defendant refuses to accept the service,relates only to a refusal to accept personal service.
Again, under Rules 17 and 19 before a refusal of notice or summons can be taken as amounting to due service, there shall have been an effective affixture of summons or notice on the outer door or some other conspicuous part of the house of the defendant. No such affixture will be possible in a case where notice is sent by registered post. In 1955-2 Mad LJ 8S Rajamannar C. J. held that where there is no affixture of the copy of summons as required by Rule 17 of Order V C.P.C. the refusal to receive notice, whether sent by post or when tendered personally, should not be regarded as due service. It is true that the decision in this case was rendered at a time when Rule 20-A was not introduced in Order 7 C. P. C. but we are of opinion that the interpretation that Rules 17 and 19 which alone authorised the Court to treat the refusal as tantamount as acceptance of service would still he the same after the introduction of that rule. Service through registered post can be taken as due service only when the party responds to it or at least acknowledges receipt of the summons so served. There is sound reason behind in restricting the efficacy of postal service to a case of acceptance of service alone. It cannot be ruled out as impossible that an indifferent or dishonest postman might even without going near the defendant return the registered letter as refused. The Court will then have no effective sanction or control over him. For one thing the person who can complain against the failure of the postman to deliver the letter being the defendant himself and ex concessive would be not aware of the misconduct of the postman; there will be no other person, who will be interested in complaining to the Court. Secondly the Court will have no effective supervision over the service by the postman as it has over its own process servers. Undue dependence on the efficacy of postal service might even encourage fraud in the service of process. The rule makes it obligatory that there should be an attempt at. personal service before the procedure under Rule 19 of Order V C. P. C. is adopted. It the defendant does not accept service by post, the Court will have no alternative but to send summons through its process-servers. This was the view taken by Panchapakesa Ayyar J. in 1958-2 Mad U 143 : (AIR 1958 Mad 522), following the earlier decision of Rajamannar C. J. in 1956-2 Mad LJ 86.
8. Ganapatia Pillai J. was not satisfied that the decision in 1958-2 Mad LJ 143 : (AIR 1958 Mad 522), was correct as there was no reference in that decision to Order V Rule 20-A C. P. C. But Rule 20-A as we shall show does not relate to the service of first summons. In terms it only provides for the service of summons or notice by registered post if summons could not properly be served under the normal procedure in the first instance, The circular issued by this Court makes it obligatory on the subordinate Courts to send summons by registered fast but that is merely to carry out the provisions of Rule 9(3) of Order V which vests a discretion in the Court. There is nothing in the circular or in the rule to make an insufficient service under the law a sufficient one. Again Rule 20-A (1) which gave a discretion to the Court to direct service of summons by post either in lieu of or in addition to personal service expressly states that its provisions would come into operation only when the summons is returned unserved thereby clearly showing that the rule is not to operate in the case of first summons issued in the case. Sending of summons by registered post under that rule cart therefore be resorted to only if the first attempt at personal service has failed. Sub-clause (2) which provides for treating the acknowledgment signed by the defendant as tantamount to service can have reference only to the notice specified in Sub-clause (1) to that rule and even Sub-clause (2) vests a discretion in the Court to accept the refusal as proper service or not to accept the same.
The learned Judge has suggested that Rule 20-A Sub-clause (2) of Order V C. P. C. can be treated as an independent section applying the rule contained therein to all cases within the Code envisages postal service. With respect, we cannot agree. If the Legislature had intended that Sub-rule 2 would have such an effect it could have employed suitable words or at any rate framed Sub-clause (2) of Rule 20-A as an independent section. When the legislature passed the Amending Act in 1956, it had certainly before it the amendment introduced by the Madras High Court to Rule V. If it was its intention that Rule 20-A Sub-clause (2) should apply to the service of postal notice under Rule 9(3) it would have inserted an appropriate rule next after it. It must be remembered that Rule 20-A is intended to apply to all States, some of which did not have a rule like 9(3) which the Madras and certain other States are having.
To hold that Rule 20-A (2) would comprehend first summons also would mean that the legislature intended that in regard to certain States refusal to accept a postal service would be effective even if there had been nopersonal service while in regard to other State, such refusal would be effective only if there had been an ineffective personal service in the first instance. That seems unlikely. Section 27 of the General Clauses Act defines the meaning of the word "service by post". That states inter alia "the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." This provision cannot apply to a provision like Order V Rule 9(3) C. P. C. in so far as the statute specifically prescribes personal service and not postal service as proper service.
Postal service as we stated before can be deemed equivalent to personal service only in the case, where the addressee has acknowledged the notice. Ordinarily, a refusal to accept service cannot be regarded as equivalent to service, there should be a statutory provision to make it such. There is nothing in Section 27 of the General Clauses Act which compels us to come to a different conclusion. It follows that although the first defendant might have refused the postal cover containing the summons in the instant case, such refusal, even if proved, cannot be treated as equivalent to due service of summons. The first defendant will, therefore, be entitled to have the ex parte decree set aside provided he has come to Court within the time limited by law.
9. Article 164 of the Limitation Act provides for a period of thirty days for an application to set aside an ex parte decree. Time will begin to run from the date of the decree or where the summons was not duly served when the applicant has knowledge of the decree. In the present case the concurrent finding of both the Courts below is that the first defendant deliberately refused to receive the summons. It would follow that he had constructive notice of the contents of the registered cover which was tendered to him by the postman, that is to say, he had knowledge of the date of the hearing of the suit. Knowledge of the date of hearing of the suit does not necessarily mean knowledge of the fact that a decree had been passed on that date or subsequent to that date. For the application of Article 164 of the Limitation Act, it is necessary to ascertain when the defendant applying for setting aside the ex parte decree had knowledge of the decree. Mere knowledge of the date of the suit would not be enough for that purpose. This was the view taken in 1956-2 Mad LJ 86, and 1958-2 Mad LJ 143 : (AIR 1958 Mad 522). It follows that the decree of the learned District Judge in the present case is correct. The civil revision petition fails and is dismissed. There will be no order as to costs.
