1. The application filed by the 2nd defendant to set aside the ex parte decree had been allowed by the District Munsif of Pennkonda. As against that order is this revision petition by the plaintiff.
2. The suit was filed for recovery of Rs. 2680/- being the cost of empty tins which the defendants did not return to the plaintiff-firm. A notice to the defendants was ordered to be sent by post. The 2nd defendant himself had been served on 15-2-1954 but he was set ex parte. The 3rd defendant filed a written statement but later on his counsel reported no instructions. The registered notice sent to the 4th defendant was returned with the endorsement that he refused. He was also set ex parte. The 1st defendant was given up. So, a decree was gassed against defendants 2 to 4, and it is this ex parte decree against defendants 2 to 4 that is sought to be set aside.
3. The learned District Munsif gave his reason for setting aside the decree as that he considered that there was no service on the 4th defendant. He opined that the mere endorsement of the postman on the registered notice that service was refused is not enough for holding that the service is sufficient. The learned counsel for the plaintiff-petitioner now contends upon Rule 20-A of Order V, C. P. C., that the refusal must be deemed to be proof of services That ride reads as follows :
'20-A. (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 forgoing 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 by the defendant or the agent or an endorsement 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.'
The calling in aid of this rule for service by post is, I should think on a plain reading of its language, conditioned upon the contingency arising 'when summons is returned unserved' which clearly indicates that the service of summons in the first instance is not dispensed with altogether. This rule only prescribes the way in which the service of the summons, which was returned unserved, could thereafter be effected.
In such a contingency, in lieu of the issue of summons or in addition to the manner provided for service of summons in the other rules of this Order the Court is empowered to direct the summons to be served by registered post. Therefore, Sub-rule (1) cannot be invoked in aid of service of summons by post even in the first instance. It is next to be observed that under Sub-rule (2) an endorsement by a postal employee that the defen-dant or the agent refused to take delivery is not to be ipso facto treated as proof of service but may be 'deemed' by the Court issuing the summons to be prima facie proof of service.
Therefore, the volition of the court to treat it as proof of service would alone make this deeming clause operative. Anything short of proof of such an act by the Court deeming this as proof of service cannot be relied upon by the parties for getting the benefit of this sub-rule. So the requirement of Sub-rule (2) namely the treatment of refusal by the Court as proof of service, is to be strictly established.
4. Having regard to the above it is now necessary to examine whether the order of the learned District Munsif is vitiated. That order is in these terms:
'The service on 4th defendant was held sufficient on the mere endorsement of post-man that he refused. This is not sufficient. So the decree as against the 4th defendant has got to be set aside as it should be deemed that there was no service on him. Hence the decree is set aside against the defendant. The other defendants can also come in. So the petition is allowed on payment of costs of Rs. 35/-. For payment 2-2-1957. Sd/-District Munsif, 11-1-1957.Order:-- 2-2-1957. Rs. 35/- deposited. Petition is allowed.Sd/-District Munsif, 2-2-1957.'
Though it was not specifically stated by the learned District Munsif that this summons had been in lieu of the summons which had been previously returned unserved, there is nothing to show herd ill this case that there was an unserved summons. Secondly, nothing has been produced to show that the learned District Munsif deemed the summons, which had been refused, as prima facie proof ofservice. In the absence of any such order, thisfact cannot be presumed, especially when undersub-rule (2) it is the learned District Munsif in the circumstances that should have made it dear that he deemed this refusal as proof of service.
Therefore having regard to the facts of this particular case, the mere refusal of summons sent by registered post without the proof of the existence of unserved summons and the Order of the learned District Munsif deeming it to be proof of service, would not entitle the plaintiff to invoke the provisions of Rule 20-A of Order V to seek to justify the ex parte decree.
5. The advocate for the respondents incidentally referred me to the decision in Murugayyan Kangiar v. Marudayyammal, 1956-2 Mad LJ 86 wherein Rajamannar, C. J. held that affixture provided under Rule 17, Order V would be necessary even in cases where the notice is by registered post and the service is refused, and argued that affixture also is necessary as part of proof of service. But it has to be observed that this decision was rendered before the introduction of Rule 20-A in Order V by Act LXVI of 1956.
The specific provision in regard to the pro-cedure in Rule 20-A to be followed in cases of service by postal notice has altered the situation, and therefore it is not necessary any longer to follow that procedure regarding affixture in respect of notices sent by post.
6. A point is sought to be made by the learned Advocate for the petitioner that when an application was filed only by the 2nd defendant, the non-service of the Summons on the 4th defendantought not to have been considered and the petition should have been dismissed inasmuch as the 2nd defendant was served with summons and was set ex parte.
But on a reading of the affidavit in support of the petition filed by the 2nd defendant, it is clear that a mention has been made about the non-service of summons on the 4th defendant; and it con-not therefore be said that the point regarding the non-service of summons on the 4th defendant has not been before the learned District Munsif.
7. Then it is argued by the learned counselfor the petitioner that the setting aside of the decree could not have been made even as against all the defendants. It is contended that the order does not contain the reasons for so doing. It is further urged that the 3rd defendant in his written statement claimed Rao and Co., to be the sole concern and that therefore there was no common defence. But when it is remembered that the plaintiffis seeking to fasten a liability against all the defendants and when that liability is also denied by the 3rd defendant -- be it on the basis that the tins were returned -- still the denial of liability by all the defendants is common. In such circumstances, it cannot be said that the learned District Munsif has passed a wrong order in setting aside the decree as against all the defendants.
8. It is also to be noticed that in the order of the District Munsif, directions were given for payment of Rs. 35/- as costs. The same has been deposited by the defendants into court. But it cannot, however, be said that the plaintiff or the plaintiff's advocate received the costs and therefore doubtful that the ratio in Subbamma v. P. Subbiah, 1958-1 Andh. WR 542: (AIR 1938 Andh Pra 483) is attracted to this case so as to shut the mouth of the plaintiff. But in the view I have taken, it is also not necessary to have to decide this matter in this case.
9. For the aforesaid reasons, I am of the view that interference is not called for. Therefore, the petition is dismissed with costs.