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Radha Ballav Thakur Vs. Dayal Chand Bose - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 114 of 1960
Judge
Reported inAIR1962Ori15
ActsCode of Civil Procedure (CPC) , 1908 - Order 5, Rule 10 - Order 9, Rule 13 and 13(1)
AppellantRadha Ballav Thakur
RespondentDayal Chand Bose
Appellant AdvocateG.N. Sengupta and ;L.K. Dasgupta, Advs.
Respondent AdvocateS.K. Ray and ;S.K. Ghose, Advs.
DispositionRevision dismissed
Excerpt:
.....ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the orissa amendment of the order 9, rule 13 civil procedure code sets out a proviso to the effect that no such decree shall be set aside merely on the ground of irregularity in service of summons, if the court is satisfied that the defendant knew of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim. 1 (1949) chapter ii-b for mode and proof of service, which lays down that service should be personal wherever parcticable and the courts ought not, in ex parte cases, to act upon anything short of personal service, until they are satisfied that..........passed by the learned munsif, cuttack in misc. case no. 415 of 1960 whereby he set aside the ex parte decree and restored the suit in the circumstances hereinafter stated. 2. the facts, shortly stated, are these: the defendant no. 1 dayal chandra bose is the husband of defendant no. 2. on may 15, 1959, the petitioner herein (hereinafter referred to as the plaintiff) filed a suit being t. s. no. 141 of 1959-in the court of the 2nd munsif, cuttack, against the defendants, whose village home is at kuapal, in the district of cuttack and the defendant no. 1, was also serving at khadi board at bhubaneswar. accordingly, there were two modes of service on the defendant no. 1, namely by a registered post containing the summons and the plaint addressed to his village home address kuapal in the.....
Judgment:
ORDER

S. Barman, J.

1. The plaintiff, who was the opposite party in the defendant's application in the Court below for setting aside an ex parte decree under Order 9, Rule 13 Civil Procedure Code, is the petitioner in this Civil Revision directed' against an order passed by the learned Munsif, Cuttack in Misc. Case No. 415 of 1960 whereby he set aside the ex parte decree and restored the suit in the circumstances hereinafter stated.

2. The facts, shortly stated, are these: The defendant No. 1 Dayal Chandra Bose is the husband of defendant No. 2. On May 15, 1959, the petitioner herein (hereinafter referred to as the plaintiff) filed a suit being T. S. No. 141 of 1959-in the court of the 2nd Munsif, Cuttack, against the defendants, whose village home is at Kuapal, in the district of Cuttack and the defendant No. 1, was also serving at Khadi Board at Bhubaneswar.

Accordingly, there were two modes of service on the defendant No. 1, namely by a registered post containing the summons and the plaint addressed to his village home address Kuapal in the district of Cuttack as aforesaid, and it was also issued to be served through his superior officer at Khadi Board where he was serving at Bhubaneswar. On June 22, 1959, the defendant No. 1 is stated to have received the summons and the plaint at his village address personally. According to the Plaintiff's case the service was thereby complete; but the summons, which was to be served through his superior officer at Bhubaneswar, was redirected to his village as he was then on leave.

Thus the service through the superior officer could not be made. On November 2, 1959, as the order-sheet shows, the service return of defendant No. 1 was not received; it appears therefore that the defendant No. 1 had personally received the summons issued by post; the defendant No. 2's husband (defendant No. 1) had personally received the suit summons and accordingly the Court considered that service acceptance was sufficient on both the defendants; it also appears that the defendants having had taken the steps and having been absent On call on the date were set ex parte; the suit was fixed for ex parte hearing on November 21, 1959 on which date an ex parte decree was passed against the defendants.

On November 24, 1959 the decree was drawn up, sealed and signed. On December 21, 1959 the defendant No. 1 filed a petition for setting aside the ex parte decree under Order 9, Rule 13 Civil Procedure Code on the ground that he did not receive the summons. The learned Munsif allowed the defendant's application for setting aside the ex parte decree and restored the suit. Hence this Civil Revision.

3. Mr. L. K. Dasgupta, learned counsel for the plaintiff petitioner, contends that the service by registered post which was accepted by the defendant No. 1 is sufficient. In support of his contention, he relied on Ext. C being the acknowledgment receipt, purporting to show that the defendant No. 1 had received a registered letter on June 22, 1959; he also relied on another acknowledgment receipt (Ext. D) also signed by the defendant No. 1 on the same clay purporting to show to the same effect. It is also said that the post peon was examined; furthermore the defendant No. 1 himself does not deny the service,

4. The only question is whether the service on the defendant was sufficient. The Orissa amendment of the Order 9, Rule 13 Civil Procedure Code sets out a proviso to the effect that no such decree shall be set aside merely on the ground of irregularity in service of summons, if the Court is satisfied that the defendant knew of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim.

Mr. Dasgupta's contention is that there was no irregularity in the service of summons in the present case. It is, however, clear that the provisions are to the effect that, if the defendant is able to show that the summonses were not duly served on him, it is mandatory that the decree should be set aside; the question of knowledge or no knowledge is not relevant for the purpose of Order 9, Rule 13.

The purport of the law is further made clear by Rule 7 of the General Rules and Circular Orders of this High Court, Vol. 1 (1949) Chapter II-B for Mode and Proof of Service, which lays down that service should be personal wherever parcticable and the Courts ought not, in ex Parte cases, to act upon anything short of personal service, until they are satisfied that personal service could not reasonably be effected. The Orissa Amendment of Order 9, Rule 13 will only apply when it is a case of irregularity in the manner or mode of service of summons but not in a case where there was no service at all as required by law.

The service at the village was no service at all. The Patna amendment of Order 5 Rule 10 Civil Procedure Code is that, in any case, the Court may, of its own motion or on the application of the plaintiff send the summons to the defendant by post in addition to the mode of service laid down in Order 5, Rule 10: an acknowledgment purporting to be signed by the defendant or an endorsement by a postal servant that the defendant refused to take delivery may be deemed by the Court issuing the summons to be prima facie proof of service. In the present case Exts. C and D (acknowledgment receipts) only show that a certain registered letter was received by the defendant No. 1 on June 22, 1959 but there is no proof as to what the letter contained. The Post peon, who was examined, does not prove the contents of the registered letter.

5. There is another aspect in this particular case in that the defendant No. 1 is a Government Employee. There is a special mode of service applicable to him under Order 5, Rule 27 Civil Procedure Code in that where the defendant is a public officer Or is the servant of a local authority, the Court may, if it appears to it that the summons may be most conveniently so served, send it for service on the defendant to the head of the office in which he is employed, together with a copy to be retained by the defendant; Order 5, Rule 29 provides that where a summons is delivered or sent to any person for service under Rule 27, such person shall be bound to serve it if possible and to return it under his signature, with the written acknowledgment of the defendant, and such signature shall be deemed to be evidence of service; also that where from any cause service is impossible the summons shall be returned to the Court with a full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non-service.

Then again Order 9, Rule 6 Civil Procedure Code provides that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if it is proved that the summons was duly served, the Court may proceed ex parte. In the present case, the service return in respect of the service through the superior officer of defendant No. 1 at Bhubaneswar was not received by the Court by the time the suit was set ex parte or at the time the ex parte decree was passed against the defendants; it is also clear that the Court at that time did not satisfy itself that the provisions of Order 5, Rule 29 were complied with.

6. There is no merit in the plaintiff's contentions that the registered letter should be presumed to have contained the summons and the plaint. No doubt there is proof that it was sent by post and there is also an office note to the effect that the service was to be issued by Post. Mr. Dasgupta's point is that when the summons had been issued, all that can be said is that it is a case of irregular service and not a case of non-service and therefore the plaintiff is entitled to the benefit of the Orissa amendment of Order 9, Rule 13. What, in my opinion, is conclusive on the point of service is the position that if the service at the village by registered post was considered sufficient, then there was no reason why the trial Court waited for return of the service through the Superior Officer of the defendant at Bhubaneswar.

This, by itself, shows that the Court was conscious that the service of summons was not sufficient. Order 9, Rule 6 (1) (b) provides that if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant Thus it is clear that when it is considered that the service is not sufficient, then the second summons is contemplated under the Code.

7. In this view of the case, I am of opinion that there is no material irregularity or illegality in the order of the Court below. The decision of the trial Court is, accordingly, upheld. This Revision is, therefore, dismissed with costs.

Hearing fee Rs. 50/-. (Rupees fifty).


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