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Shanta Vs. Khalas Ramjibhai Chhotalal - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtMumbai High Court
Decided On
Case NumberA.F.O. No. 145 of 1954
Judge
Reported inAIR1956Bom144
ActsCode of Civil Procedure (CPC), 1908 - Order 5, Rules 10, 21, 21A and 25; General Clauses Act, 1897 - Sections 27
AppellantShanta
RespondentKhalas Ramjibhai Chhotalal
Appellant AdvocateD.V. Patel, Adv.
Respondent AdvocateV.T. Gambhirwalla, Adv. for I.S. Parikh, Adv.
Excerpt:
.....to have been refused by appellant - trial court approving contention of respondent passed ex parte decree of divorce against appellant - presumption of service of summons arises under section 27 when properly addressed registered letter has been duly served - summons properly served and trial court rightly concluded matter. - - even though service of summons by post is now recognised, it is a poor substitute for personal service and is permitted as a matter of convenience. if relying upon the regularity of the decree passed by a court a third party has altered his position and the reversal of the decree would work serious prejudice to that party, the court must enquire and be satisfied about the truth of the plea of the defendant before reopening the proceedings concluded by a..........the present case the plaintiff has remarried, and the effect of setting aside the decree ex parte passed by the court below would seriously prejudice the status of his new wife who was not even alleged to be guilty of any improper conduct.4. rule 21a of o. 5 to schedule of the civil p.c. which has been added by this court provides in so far it is material that where the plaintiff so desires, the court may, notwithstanding anything contained in the rules cause the summons to be addressed to the defendant at the place where he is residing, and sent to him by registered post prepaid for acknowledgment provided that at such place there is a regular daily postal service.an acknowledgment purporting to be signed by the defendant shall be deemed by the court issuing the summons to be a.....
Judgment:

1. This is an appeal filed against the order passed by the District Court of Ahraed-dabad refusing to set aside the decree passed ex parte in Divorce Suit No. 16 of 1952. The plain-tiff Ramjibhai Chhotalal filed the suit in the Court of the District Judge at Ahmedabad for a decree for divorce against his wife Bai Shanta.

The summons of the suit was sent to the defendant Bai Shanta by registered post. The packet containing the summons was returned im-served with the endorsement of the postal peon stating that it was refused when tendered. Thereafter the plaintiff filed an affidavit stating that the defendant had come to know that the suit ha.d been filed and with a view to protract the proceedings the defendant had deliberately refused to accept the summons.

The learned District Judge, it appears, accepted the affidavit of the plaintiff and treated the summons as properly served upon the defendant. Thereafter a decree ex parte was passed against the defendant for divorce on 14-7-1852.

2. On 15-9-1953 the plaintiff got married to another woman at Balsar. Thereafter on 16-9-1853, that is nearly 14 months after the date on which the decree ex parte was passed, an application was filed by the defendant for setting aside the decree ex parte on the ground that the summons was never tendered to her and that she had never declined to accept the summons. That application was rejected by the learned District Judge.

The learned Judge Held that the defendant must have known that the plaintiff had obtained a divorce decree against her and that she had not taken any steps to have the decree set aside. The learned Judge was referred to the evidence of one Bababhai Chhotalal, who deposed that it was only after the plaintiff told him that he had obtained a decree for divorce on 14-9-1953 and he communicated the information to the defendant that the defendant came to learn about the passing of the divorce decree.

The learned Judge regarded that evidence of Bababhai as 'unnatural' and refused to believe the same. The learned Judge also pointed out that about the time when the summons was sought to be served on the defendant she was in Ahmedabad and that she must have refused to accept the summons when it was tendered to her.

The learned Judge regarded the service of the summons in the special circumstances of the ease as 'proper and in order', and he held that the defendant did not care to appear in the suit and, therefore, the decree passed was not liable to be set aside.

3. Mr. patel who appears on behalf of the defendant in this appeal contends that service of summons by registered post is an unsatisfactorymode of service and the invariable practice should be that whenever the defendant appears before the Court and alleges that the summons stated to have been served upon him by registered post has never been tendered to him and that he did not decline to accept the packet containing the summons, the Court which passed the decree ex parte should as a rule set aside the decree ex parte and restore the suit to the file for hearing.

I am unable, to accept that contention. The legislature has recognised service of summons by registered post as one of the modes of service. Even though service of summons by post is now recognised, it is a poor substitute for personal service and is permitted as a matter of convenience. ' The 'normal rule followed by the Courts' is to allow the defendant a retrial, if after a decree ex parte has been passed against him, on evidence that the summons was sent by registered post and returned with an endorsement of refusal, the defendant appears and denies that the packet was even tendered to him by the postal authorities.

In other words the order of retrial would be passed as a matter_of course and. without investi-gation into the truth or otherwise of the allegation made by the defendant. But this cannot be an invariable rule. If relying upon the regularity of the decree passed by a Court a third party has altered his position and the reversal of the decree would work serious prejudice to that party, the Court must enquire and be satisfied about the truth of the plea of the defendant before reopening the proceedings concluded by a decree.

In the present case the plaintiff has remarried, and the effect of setting aside the decree ex parte passed by the Court below would seriously prejudice the status of his new wife who was not even alleged to be guilty of any improper conduct.

4. Rule 21A of O. 5 to schedule of the Civil P.C. which has been added by this Court provides in so far it is material that where the plaintiff so desires, the Court may, notwithstanding anything contained in the rules cause the summons to be addressed to the defendant at the place where he is residing, and sent to him by registered post prepaid for acknowledgment provided that at such place there is a regular daily postal service.

An acknowledgment purporting to be signed by the defendant shall be deemed by the Court issuing the summons to be a prima facie proof of service. In all other cases the Court shall hold such enquiry as it thinks fit and declare the summons to have been duly served or order such further service as may in its opinion be necessary.

In the present case after the packet containing the summons was returned to the Court with the endorsement of refusal by the defendant the Court required the plaintiff to file an affidavit and the Court was satisfied on that affidavit and treated the summons as properly served.

As pointed out by the learned trial Judge if the defendant was in Ahmedabad at or about the, time when the summons was attempted to be served, it is difficult to hold that the postal peon did not still attempt to serve the summons upon the defendant and made a false endorsement of refusal on the packet containing the summons.

5. Mr. Patel contended that Sir Norman Macleod in -- 'Sunder Spinner v. Makan Bhula' AIR 1922 Bom 377 (1) (A) has laid down a general rule that whenever service of summons was sought to be effected by registered post and there was on the packet containing the summons an endorsement of refusal of the summons by the defendant and a decree ex parte was passed, if the defendant appeared before the Court: after the passing of the decree ex parte, the Court' would as a matter of course set aside the decree ex parte and restore the suit.

As I have stated earlier, it would normally be a good working rule where the interests of third parties have not intervened. Where, however, interests of third parties have Intervened the Court must before setting aside the decree hold an Inquiry and come to the conclusion whether in fact a summons was not served upon the defendant as originally held on inquiry to be served.

The Court cannot lose sight of the fact that under the provisions of S. 27, General Clauses Act, I of 1697 a presumption of service arises, when a letter is sent pre-paid by registered post and addressed properly to the person on whom it is permitted by law to be served by post, that the letter has been duly served on the person concerned. That presumption would also arise in favour of the plaintiff In a suit where the summons is sought to be served upon the defendant by registered post. I therefore, agree with, the view ofthe learned Trial Judge that the summons was duly served upon the defendant, and dismiss this appeal. There will be no order as to costs of this appeal.

6. Appeal dismissed.


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