K.P. Mohapatra, J.
1. This revision is directed against the order passed by the learned District Judge, Balasore confirming the order passed by the learned Subordinate Judge, Balasore refusing to set aside the ex parte final decree passed in O. S. 122 of 1970.
2. The petitioner was defendant No. 1 and the opposite party was the plaintiff in the suit for partition (O. S. No. 122 of 1970). The preliminary decree in the suit was passed on 21-12-1973 declaring half share of each of the aforesaid parties in respect of the subject-matter of partition. According to the petitioner, he served as a Porter in Calcutta and when he came home on 24-9-1978, he was informed by his wife that on 18-9-1978 a process server of the civil Court had served a notice by affixture. On going through the notice the petitioner came to know that he was noticed to appear in the Court of the Subordinate Judge, Balasore in Execution Case No. 14 of 1978. He came and met his Advocate at Balasore on 15-8-1978 and showed the execution notice to him. The advocate inspected the execution record on 28-9-1978 and informed the petitioner that in O. S. No. 122 of 1970 a final decree was passed on 18-11-1976 and the said decree was under execution in Execution Case No. 14 of 1978. It is stated by the petitioner that in the final decree proceeding notice either through process server or by registered post was not served on him and there was fraudulent suppression of service thereof. He also did not receive any notice from any civil Court commissioner who might have been deputed to effect partition. Otherwise he had absolutely no knowledge of the final decree proceeding. It was, therefore, not possible on his part to appear and participate in the said proceeding. He would suffer irreparable loss if the final decree passed ex parte was not set aside. He, therefore, presented a petition under Order 9, Rule 13 of the Civil P.C (hereinafter referred to as the 'Code') (registered as Misc. Case No. 180 of 1978) for setting aside the ex parte final decree passed on 8-11-1977 in O. S. 122 of 1970 on the ground of fraudulent suppression of service of notice on him.
3. Opposite party categorically denied all the averments made in the petition under Order 9, Rule 13 of the Code and inter alia contended that there was service of notice of the final decree proceeding on the petitioner according to law. He was otherwise aware of the same.
He did not deliberately appear in the said proceeding. Therefore, the ex pane final decree passed according to law was not liable to be set aside.
4. The learned Subordinate Judge recorded the following findings :
i) The service of notice of the final decree proceeding on the petitioner by a process-server was effected by affixture because, he was found absent having gone to Calcutta. Such service was not accepted as sufficient, until the postal acknowledgment came back after refusal, whereafter it was held that service of notice of the final decree proceeding on the petitioner was sufficient;
ii) The petitioner had received a notice from the civil Court commissioner who was appointed to survey the subject-matter of partition; and
iii) During pendency of the final decree proceeding the petitioner contested Misc. Case No. 45 of 1976 under Article 151 of the Code brought by the opposite party demanding paddy from the former who was appointed as receiver by the Court in the suit.
With the aforesaid findings the learned Subordinate Judge rejected the petition. In appeal, the learned District Judge held that there was sufficient service of notice of the final decree proceeding on the petitioner by registered post and further he had notice of Misc. Case No. 45 of 1976 under Section 151 of the Code during pendency of the final decree proceeding. Accordingly he confirmed the order of the trial Court.
5. Mr. S. C. Roy appearing for the petitioner raised the following contentions;
i) The trial Court recorded a finding that service of notice through the process-server by affixture was insufficient because the petitioner was in Calcutta. The petitioner denied on oath having received or refused notice of the final decree proceeding by registered post. The opposite party did not prove either posting of the notice by producing the postal receipt or the postal A. D. showing either receipt or refusal of the notice by the petitioner. Therefore, he did not discharge the onus which lay on him nor proved sufficiency of service of notice of the final decree proceeding on the petitioner.
ii) In view of the petitioner's denial of service of any notice of the final decree proceeding,the opposite party did not discharge his burden by proving service of notice on the petitioner by the civil Court commissioner during continuance of the final decree proceeding, and
iii) There is no material on record of this case that the petitioner appeared and contested in Misc. Case No. 45 of 1976 under Section 151 of the Code. The learned Courts below went wrong in referring to materials not brought on record of this proceeding and denied opportunity to the petitioner to meet the case that he appeared and contested Misc. Case No. 45 of 1976 even if it is assumed that the petitioner contested Misc. Case No. 45 of 1976. There is nothing further on the record to show that he had knowledge of the continuance of the final decree proceeding.
According to Mr. Roy, therefore, the final decree having been passed without service of notice on the petitioner according to law, is liable to be set aside. Learned counsel appearing for the opposite party, on the other hand, urged that the petitioner refused to accept the notice by registered post which should be deemed as sufficient notice of the final decree proceeding on him. He had otherwise knowledge of the final decree proceeding as referred to by the learned Courts below. Therefore, the belated plea of the petitioner should not be accepted.
6. At the outset I would make a brief reference to the evidence adduced by the parties in the trrial Court. The petitioner examined himself as P. W. 1 on oath and completely denied that he received any notice of the final decree proceeding either through Court or by registered post. He also denied having received any notice from the civil Court commissioner. Although he admitted that he was appointed as receiver in the suit, he denied having contested Misc. Case No. 45 of 1976. P. W. 2 stated that the petitioner was living in Calcutta for the last 10 or 25 years. He did not see any civil Court commissioner measuring lands. The opposite party examined his father as 0. P. W. 1 who stated that he looked after the suit. The petitioner did not receive notice through Court and by post though he was continuously residing in the village. The Civil Court commissioner served notice on the petitioner who was present at the time of measurement of the plots. He identified the petitioner to the process server who offeredthe notice of the final decree on 16-9-74. The petitioner had refused to receive the notice.
The process server who was deputed for service of notice in the final decree proceeding was not examined. The notice was not brought on record and duly proved. The Postman who offered the postal cover containing the notice of the final decree proceeding was also not examined. The postal cover with the postal A.D. which was said to have been refused was not brought on record and duly proved. The civil Court commissioner was not examined to prove that he served the notice on the petitioner and that the latter was present at the time of survey of the subject-matter of the partition. His report was also not brought on record to show that the petitioner participated at the time of survey. The records of Misc. case No. 45 of 1976 particularly the objection filed by the petitioner therein was also not brought on record and duly proved.
7. In view of the findings recorded by both the Courts below, the contentions raised by the learned counsel and the oral evidence adduced in the case, the following points arise for determination :
i) Whether there was sufficient service of notice of the final decree proceeding on the petitioner through the process server of the Court;
ii) Whether there was proper service of notice of the aforesaid proceeding on the petitioner by registered post;
iii) Whether the civil Court commissioner appointed in the final decree proceeding served notice on the petitioner before making survey of the subject matter of partition; and
iv) Whether the petitioner had knowledge of the final decree proceeding because he participated in the proceedings of Misc. Case No. 45 of 1976.
8. According to Order 5, Rule 12 of the Code, service of summons should be made on the defendant personally by the process server of the Court as far as practicable. According to Rule 15, where the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summonson his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17, where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence and there is no likelihood of his being found at his residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, 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 or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so and the name and address of the person, if any, by whom the house was identified and in whose presence the copy was affixed.
Manifestly the process server of the Court did not effect personal service of the notice of the final decree proceeding on the petitioner in accordance with Rule 12. He did not also serve the notice on any adult member of the petitioner's family in accordance with Rule 15. As found by the learned Subordinate Judge, the notice was served by affixture according to Rule 17 because, the petitioner was found absent at his ordinary place of residence having gone to Calcutta. Such service of notice of the final decree proceeding on him was not readily accepted as sufficient.
It was urged by Mr. Roy that since the petitioner in his evidence denied service of notice through the process server and discharged the initial onus that lay on him, the onus of proof shifted to the opposite party who made no attempt to prove the essential ingredients of Order 5, Rule 17 of the Code. In the absence of compliance thereof, it cannot be held according to law that there was sufficient service of notice of the final decree proceeding on the petitioner. With regard to onus of proof two decisions may be noticed. In the first decision reported in AIR 1961 Orissa 73, Reghunath Pani v. Radhakanto Deb, it was held that onus of proof lay on the party whoasserted that there was sufficient service of summons. Therefore, such party should prove by examination of the process server that service of summons was duly effected according to the provisions of Order 5 of the Code. In that particular case, the landlord defendant asserted sufficiency of service of summons and so it was held that onus was upon him to prove that there was proper service of summons by examining the process server. In the next case reported in (1963) 29 Cut LT 607, Damodar Patnaik v. Kashinath Subudhi, a different view was taken. In that case there was service of summons under Rule 17 on refusal by the defendant. Thereupon the process server swore an affidavit as contemplated in Rule 19. The plaintiff also proved service by swearing an affidavit. In view of the aforesaid facts, it was held that in a case where the defendant asserted that there was no service by affixture and the plaintiff did not oppose it, the question as to who would examine the process server was somewhat academic. But if the Court recorded an order which satisfied the tests laid down in Order 5, Rule 19 the applicant was confronted with the difficulty of getting over the order of the Court regarding a finding that service was sufficient. In such cases, it was incumbent on the applicant to examine the process server and get a statement from him that the summons was not offered to him. The rule threw the onus on the applicant, and a mere denial as against the order of the Court might not be sufficient to discharge the onus when positive evidence in support of the plea of denial could be available. If the process server was called and he supported the case of the defendant, then the effect of the previous order of the Court accepting sufficiency of the service was whittled down. In this case, however, the earlier decision was not noticed.
The facts of the present case are, however, different from the facts of the later decision. Whereas, summons through Court was refused and on compliance of Rule 19 by the process server and on the basis of an additional affidavit from the plaintiff it was recorded by the Court that there was proper service of summons on the defendant, in the present case the notice was served by affixture on the ground that the petitioner was absent in his house and there is nothing in the impugned orders to show that there was compliance of Rule 19 by the process server. On the other hand, as apparent from the order of the trial Court the Court foundthat service of notice through the process server was not found to be sufficient. On account of this distinctive feature of this Case, it hat has to be decided on the facts of own.
Therefore, on the peculiar facts of this case, I am of the view that since the petitioner in his evidence denied service of notice through the process server, the onus of proof shifted to the opposite party who made no attempt to prove the essential ingredients of Order 5 Rule 17 of the code by examining the process server. In the absence of compliance thereof, it cannot be held according to law that there was sufficient service of notice of the final decree proceeding on the petitioner.
9. According to the opposite party, notice of the final decree proceeding was sent to the petitioner by registered post with A.D., but the same was refused. The Courts below accepted such service as sufficient. Mr. Roy urged that the postal cover with the endorsement of the Postman which were patently not public documents were not proved and duly admitted into evidence as exhibits. The Postman was also not examined as a witness.
Therefore, the Courts below committed a serious error in recording a finding that there was proper service of notice of the final decree proceeding on the petitioner by registered post.
Order 5, Rule 10 of the Code provides that service of summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court. A proviso to Rule 10 was added in Orissa by way of amendment to the following effect :
'Provided that in any case 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 this rule. An acknowledgment purporting to be signed by the defendant or an endorsement by 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.'
By Civil P.C. (Amendment Act) 1976 (104 of 1976) a new Rule '19A' to Order 5 was introduced providing for simultaneous issue of summons for service by post in addition to service through process server almost identical to the Orissa amendment of Rule 10. Accordingto Sub-rule (2) thereof, when an acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant. According to the proviso to Sub-rule (2), where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of the summons. Learned counsel appearing for the opposite party cited a decision reported in (1978) 46 Cut LT 197 (AIR 1979 Orissa 11), M. P. Swami v Mangaram Agarwalla, in which, relying upon two decisions of the Supreme Court reported in AIR 1963 SC 822, Radha Kishan v. State of Uttar Pradesh, and AIR 1976 SC 869, Puwada Venkateswara Rao v. Chidamana Venkata Ramana, it was held that where a notice sent by post in a registered cover is returned by the Postman with the endorsement that the addressee refused to receive it and the posting of the notice has been proved, there arises presumption under Section 114 of the Evidence Act that the addressee did refuse to receive it even though the Postman has not been produced to prove tender and refusal. Undoubtedly, the presumption is one of the fact and rebuttable. The presumption is not rebutted by denial on oath by the addressee unless it is believed by the Court. The basis of the aforesaid view is undoubtedly the Orissa amendment of Rule 10 and Rule 19A and finds support from the decisions reported in AIR 1958 Cat 251, Sushil Kumar Chakravarty v. Genesh Chandra Mitra, (1970) 2 Mad U 535, M. Janakiram Naidu v T. R. Arumugha Mudaiiar and a Fulll Bench decision of the Gujarat High Court reported in (1974) 15 Guj LR 655 : (AIR 1975 Guj 54), Memon Adambhai Haji Ismaif v. Bhaiya Ramdas Badiudas. It can, therefore, be held on interpretation of the Orissa amendment to Rule 10 and Rule 19A that on the roof of the facts that a prepaidproperly addressed postal cover containing the notice/summons was sent by registered post and when acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the notice/summons is received back by the Court with an endorsement purported to have been made by a postal employee to the effect that the defendant or his agent has refused to take delivery of the postal article containing the notice/summons when tendered to him, the Court issuing the summons shall declare that the notice/ summons has been duly served on the defendant and upon such declaration service by registered post on the defendant shall be deemed to be sufficient. If the defendant shall challenge that he did not either receive the notice/summons which was not offered to him nor did he refuse the same, the onus will lie on him to prove the contrary for doing which he may examine the Postman or any other employee of the Postal Department entrusted with the duty of delivering the registered postal cover.
10. In this case, however, there was no proof that the notice of the final decree proceeding addressed to the defendant was prepaid and duly sent by registered post with acknowledgment due. The posstal cover itself had not been proved and admitted into evidence and exhibited. In such circumstances, it cannot be said that the declaration of the Court that the notice had been duly served on the petitioner was based on evidence. Therefore, the finding recorded by the Courts below that there was sufficient service of notice of the final decree proceeding on the petitioner by registered post cannot be accepted.
11. There is nothing on the record that the civil Court commissioner appointed in the final decree proceeding served notice on the petitioner. No document to that effect was proved and exhibited. The civil Court commissioner was also not examined by the opposite party to prove that he served notice on the petitioner and as a matter of fact the latter was present at the time of making survey of plots. In the absence of any evidence whatsoever, it is not possible to accept the finding of the Courts below that the petitioner was aware of the final decree proceeding.
12. The last point is whether the petitioner participated in Misc. Case No. 45 of 1976 during continuance of the final decree proceeding. It appears from the impugnedorders that the petitioner was appointed as the receiver in the original suit The opposite party alleged in the above Misc. Case that the petitioner did not deliver paddy to him. The Misc. case according to the trial Court was hotly contested by the opposite party. The objection filed by the petitioner in the said Misc. Case, if any, was not proved and attention of the petitioner was not drawn to it There is no indication in the impugned orders that while contesting the Misc. Case the petitioner was aware of the final decree proceeding. While cross-examining the petitioner (P.W. 1) no questions were asked drawing his attention to specific statements which he might have made either in his objection or in his evidence in the said Misc. Case. It must be remembered that the Civil P.C. embodies provisions conforming to the rules of natural justice and no order adverse to a party can be passed without notice to him. It cannot therefore, be held that the petitioner participated in the Misc. Case so as to impute his knowledge of the final decree proceeding. In this view of the matter the finding of the Courts below that the petitioner having participated in Misc. Case No. 45 of 1976 had knowledge of the final decree proceeding cannot be sustained.
13. Since the petitioner came to know of the ex parte final decree on 28-9-1978, the petition is not barred by Article 123 of the Limitation Act.
14. Before parting with the case I would like to observe that material documents were referred to and relied upon by the Courts below in formulating their findings without those documents being admitted into evidence and duly exhibited. The documents were public as well as private. There was no difficulty to admit and exhibit the public documents. It would be a salutary practice if the Courts exhibit documents admitted into evidence by putting specific identifying marks.
15. For the foregoing reasons, I hold that there was no service of notice of the Final decree proceeding on the petitioner and otherwise he had no knowledge thereof. Therefore, the ex parte final decree is set aside subject to payment of costs of Rs. 150/- by the petitioner to the opposite party in the trial court. The revision is accordingly allowed.