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Mohan Lal Kojriwal Vs. Sundar Lal Nand Lal Saraf and ors. - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H295
AppellantMohan Lal Kojriwal
RespondentSundar Lal Nand Lal Saraf and ors.
Cases ReferredGirish Chandra v. Kishora Mohan A.I.R.
Excerpt:
.....(c) that the notice requiring him to appear before the commissioner was delivered after the date had expired, and (d) that the commissioner informed his munim that he would fix another date later but had failed to implement his promise. makes it quite clear that the service would be valid if one or the other of the following two conditions are satisfied, namely, (1) if the defendant or his agent or such other person as is mentioned in rules 13 to 15 refuses to sign the acknowledgment, or (2) if the serving officer after using all due and reasonable diligence cannot find the defendant and there is no agent or other person; it was clearly the duty off; on 23rd july 1947. the burden of proving that he became aware of the' decree on a particular date was clearly on him and it was his..........madan mohan yarma advocate but the defendant did not appear. the case had to be adjourned as the notice served on the defendant had not come back. the report on the notice which was received subsequently showed that the defendant had gone to ajmer. i then fixed 21-12-47 and sent notice to the defendant through registered post. it was received by the defendant on 22-12-1947 and the acknowledgment signed by the defendant was received by mo on 26-12-1947. the acknowledgment signed by the defendant is attached herewith and will show that the defendant had received information of the commission personally. still he chose to keep away and did not contact me either personally or through any authorised agent to ascertain the date of the examination. the case therefore had to be adjourned on.....
Judgment:

Bhandari, J.

1. This appeal raises two questions, namely, (1) whether the defendant was duly served; and if so (2) whether his application for setting aside the ex parte decree is barred by time. It appears that on 22nd January 1947 Messrs. Sundar Lal-Nand Lal of Delhi brought a suit against one Mohan Lai of Ajudhia for the recovery of a certain sum of money on the basis of certain forward contracts in gold and silver. The Commercial Sub-Judge Delhi, issued a notice to the defendant for 5th March 1947 but the latter failed to appear on that date and an ex parte decree was passed against him on 13th March 1947. This decree was later transferred for execution to the Court at Gorakhpur and property of the defendant was attached on 10th July. About a fortnight later i.e., on 23rd July 1947 the defendant applied to the Commercial Sub-Judge at Delhi for the setting aside of the decree. He attributed his failure to appear in Court on 5th March to the fact that he was not duly served and the delay in presenting his petition for the setting aside of the decree to the fact that he did not come to know of the decree till the property was attached on 10th July. The trial Court framed the appropriate issues with the object of ascertaining whether the defendant had been duly served and whether the application was barred by time and adjourned the case for the production of evidence. One Mr. R.D. Sharma was appointed a commissioner to examine the defendant and certain witnesses who were residing in Ajudhia. He examined such of the witnesses as were produced before him but was unable to secure the presence of the defendant. He accordingly submitted a report to the Commercial Sub-Judge on 26th January 1948. When the case came up for hearing before the Commercial Sub Judge on 3rd April 1948 the counsel for the defendant requested that the case be adjourned to another date as he was anxious to examine his client who could not be examined by the commissioner. The defendant appeared in Court on 10th April and filed an application supported by an affidavit in which he alleged (a) that he could not appear in Court on 3rd April as ho was in bed in Ajudhia with a severe attack of cholera, (b) that the commissioner did not inform him of the date on which his statement was to be recorded, (c) that the notice requiring him to appear before the commissioner was delivered after the date had expired, and (d) that the commissioner informed his munim that he would fix another date later but had failed to implement his promise. He stated that he was always ready and willing to appear before the commissioner but that as his statement could not be recorded for one reason or another he prayed that his statement be recorded by the Court itself before final orders were pronounced on his application. On 15th April 1948 the Commercial Sub-Judge dismissed the defendant's application for the setting aside of the ex parte decree, (a) because the defendant had deliberately refrained from appearing before the Court and the commissioner, and (b) because his application for the setting aside of the decree was barred by time. The defendant is dissatisfied with the order and has come to this Court in appeal.

2. There can be little doubt that the defendant was not duly served for 5th March 1947 and is entitled to have the ex parte decree set aside if he establishes to the satisfaction of the Court that his application for the setting aside of the decree was presented within the prescribed period. Order 5, Civil P.C. imposes a statutory obligation on the serving officer to effect service of summons by delivering or tendering a copy of the summons to the defendant personally or to his duly empowered agent and taking his signature in token of acknowledgment of such service. If, however, the defendant or his agent refuses to sign the acknowledgment or if the serving officer after using all due and reasonable diligence cannot find the defendant, and there is no agent empowered to accept service, the serving officer is at liberty to effect service by affixing a copy of the summons on the outer door or other conspicuous part of the defendant's house. Rule 17 of Order 5, Civil P. C. makes it quite clear that the service would be valid if one or the other of the following two conditions are satisfied, namely, (1) if the defendant or his agent or such other person as is mentioned in Rules 13 to 15 refuses to sign the acknowledgment, or (2) if the serving officer after using all due and reasonable diligence cannot find the defendant and there is no agent or other person; on whom service can be made. The expression 'after using all due and reasonable diligence' has come up for judicial interpretation in a number of decided cases and it has been held repeatedly that a serving officer cannot be deemed to have exercised due and reasonable diligence unless he has made a real and substantial effort after proper enquiries to find the defendant, vide Cohen v. Narsingdas Auddy 19 Cal. 201; Kassim Ebrahim v. Johurmull A.I.R. 1916 Cal. 181. Mathura Singh v. Sheo Mohan Prasad A.I.R. 1924 Oudh 237; Dina Nath v. Opendra, Nandan : AIR1924Cal1004 ; Baldeodas v. Subkarandas : AIR1925Cal627 ; Tota v. Badri Pershad A.I.R. 1930 Lah. 192; Bhowanidas Bamgobind v. Pannachand Luchmipat : AIR1925Cal801 ; Salig Ram v. Jumna Sahai : AIR1939All180 and Mt. Najimunnisa v. Jagmohan Lal A.I.R. 1929 Pat. 433.

3. It is common ground that the notice-which was issued to the defendant by the Commercial Sub-Judge of Delhi for the 5th March was not served either by delivering or tendering a copy of the summons to the defendant personally or to his duly authorised agent. The process-server states that he went to the defendant's house at Ajudhia on 27th February 1947 but was informed that the defendant had gone to the neighbouring town of Muzaffarpur which is at a distance of about two and a half' miles from Ajudhia. He accordingly proceeded to effect service on the defendant by affixing a copy of the summons to the outer door of his house in accordance with provisions of Rule 17 of Order 5, Civil P.C. The question which requires determination, therefore, is whether the process-server used all reasonable diligence before ha proceeded to effect service by affixation. He did certainly go to the defendant's house and make an enquiry about his whereabouts but that, cannot be said to be attempting to find him. He was told that the defendant had gone to the. neighbouring town of Muzaffarpur and was likely to return soon. It was clearly the duty off; the process-server either to wait for the defendant or to follow him to Muzaffarpur or to call again at his house at a time when he was likely to be in. He made no efforts whatever to find the defendant or to effect service on him personally. In the circumstances, it seems to me that the provisions of Rule 17 were not complied with and that the defendant cannot be said to have; been duly served.

4. The question now arises whether the defendant's application for the setting aside of the ex parte decree was presented within a period of thirty days from the date of the decree or from the date on which he acquired knowledge of the decree. He admits that the decree was passed on 13th March 1947, but he con-tends that he came to know of it on 10th July 1947 when his property was attached under the orders of the Court at Gorakhpur. He presented his application under Order 9 Rule 13, Civil P.C. on 23rd July 1947. The burden of proving that he became aware of the' decree on a particular date was clearly on him and it was his duty to establish his case by such evidence as he could produce. He states that he could prove this fact to the satisfaction of the Court if he had been afforded a reasonable opportunity of appearing either before the commissioner or before the Court. The learned Counsel for the plaintiff invites my attention to the commissioner's report dated 26th January 1948 and contends that a reasonable opportunity was allowed to the defendant to appear before the commissioner but that he deliberately refrained from availing of it. Paragraphs 3 to 5 of the report are in the following terms:

I made repeated attempts to comply with the provision as regards notice and it is the main reason why there has been delay in executing the commission. Immediately I received the commission I fixed 7-12-47 for examining the witnesses. I sent notice to the parties informing them of the date fixed. On 7-12-47 one Matu Ram proprietor of the plaintiff firm appeared with Mr. Madan Mohan Yarma Advocate but the defendant did not appear. The case had to be adjourned as the notice served on the defendant had not come back. The report on the notice which was received subsequently showed that the defendant had gone to Ajmer. I then fixed 21-12-47 and sent notice to the defendant through registered post. It was received by the defendant on 22-12-1947 and the acknowledgment signed by the defendant was received by mo on 26-12-1947. The acknowledgment signed by the defendant is attached herewith and will show that the defendant had received information of the commission personally. Still he chose to keep away and did not contact me either personally or through any authorised agent to ascertain the date of the examination. The case therefore had to be adjourned on 7-1-1948. Again I personally took the notice to the defendant whom I did not meet but one Ambika Prasad calling himself general agent of the Mahant of Divyakala Kunj wrote on the back of the notice that the defendant had gone out to Sammelan and was expected within a week. I then adjourned the case to 25-1-1948 and sent a registered notice to the defendant. It was returned as the defendant refused to take delivery of it as the postal endorsement on the covering envelope will show. It will also be apparent that the defendant has deliberately been avoiding service of the notice in order to delay the proceedings and harass the other party who had to come all the way from Delhi on at least two occasions.

Under the circumstances I had no option but to record the statements of witnesses of the plaintiff ex parte. The statement of the defendant who was witness No. 3 could not be recorded as ha deliberately and contumaciously kept away from the proceedings.

I may further mention that one Ambika Prasad calling himself general agent of the defendant saw me in Court on 21-1-1948 and requested me orally to adjourn the case on 25-1-1948. I told him I could not do so on his oral request but that he should appear on 25-1-1948 the date fixed and apply for adjournment if he had sufficient grounds for it. But on 25-1-1948 neither the defendant nor his so-called general agent appeared. This still further strengthened my suspicion that the defendant has been deliberately avoiding appearance. Therefore I had to proceed ex parte against him.

5. Mr. Sam Dutt Bahri who appears for the defendant has directed two criticisms towards this report. First, that the report is inadmissible in evidence, and, secondly, that the statements appearing in the report to the effect that the defendant was duly served are not correct. The first criticism appears to me to be wholly devoid of force. Rule 7 of order 26, Civil Procedure Code runs as follows:

Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto and the evidence taken under it shall-(subject to the provisions of the next following rule) form part of the record of the suit.Mr. Bahri invites my attention to the opening words of this rule, namely that

Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it was issuedand contends that only the commission and the evidence taken thereunder can be taken into-consideration and not the report under cover of which the evidence is forwarded. He has sought to compare this rule with Rule 9 (commission to make local investigation), Eule 12 (commission to examine accounts) and Rule 14 (commission to make partition), each of which contemplates the submission of a report. He argues that as the express mention of one thing implies the exclusion of another the express mention of the word 'report' in Rules 9,12 and 14 implies the exclusion of the word 'report' from Rule 7. This argument is open to two objections. The first is that it has failed to take into account the concluding sentence of Rule 7, which provides clearly < that the commission and the return thereto and the evidence taken under it shall * * * * form part of the record of the suit. These words clearly enable a Court to examine a 'return' (that is, a report) submitted by a commissioner under the provisions of Rule 7 of Order 26, Code of Civil Procedure. The second is that Mr. Bahri has omitted to consider the provisions of Section 80, Evidence Act. This section declares that whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence * * * the Court shall presume that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or 'confession wag duly taken. This section clearly [declares that a report submitted by a commisisioner who is empowered to examine witnesses is admissible in evidence.

6. The commissioner's report makes it quite clear that the defendant failed to appear before the commissioner even though he was aware that the latter was anxious to record his statement. However blameworthy the conduct of the defendant may have been in failing to appear before the commissioner who had been appointed at his own request, it seems to me that the Court could not have dismissed the application for the setting aside of the ex parte decree unless he was afforded a reasonable opportunity for showing that his application was barred by time. The defendant is, in my opinion, entitled to claim that his evidence should have been recorded unless he had failed to appear before the commissioner after he had been duly served. It is contended that he was never duly informed of the date on which his statement was to be re-corded, The first date which was fixed by the commissioner was 7th December 1947.

7. It is common ground that the notice issued to him for that date was received back with the report that the defendant had gone to Ajmer and was not likely to return for a week or so. The case was then adjourned to 21st December. It is admitted that the defendant was not aware of that date, for the notice issued to him in respect of that date was not served till 22nd December, i.e. a day after the date had expired. The case was then adjourned to 7th January 1918. On that date too, the defendant could not be expected to appear as the notice issued to him could not be served. A fresh notice was sent to him by registered post for 25th January. This was received back with the postman's report dated 17th January that the acceptance of the delivery had been refused. The commissioner returned the commission to the Court on 26th January without recording the statement of the defendant.

8. Two questions at once arise with regard to the notice which was sent to the defendant by registered post. These are, (1) whether the defendant can be deemed to have been duly served even though the word 'refused' appearing on the registered letter has not been proved to be in the handwriting of the defendant, and (2) whether it was open to the commissioner in this case to effect service on him by post when ha had failed to effect service on him by other means. Section 27, General Clauses Act, 1897, furnishes a complete answer to the first question. This section provides that where any Central Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expressions, 'give' or 'send' or any other expression is used, then, unless a different intention appears, 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.

9. In Balu Ram v. Bai Panna Bai 35 Bom. 213 a summons was sent by registered post addressed to defendant 1 at Navalgarh in the State of Jaipur and purported to be sent in accordance with the provisions of Order 5, Rule 25, Civil P.C. The cover was returned with the endorsement in the vernacular which was translated as follows: 'Refused to take. The handwriting of Chunilal postman'. A learned Judge of the Bombay High Court held that as it appeared that the cover was properly addressed to defendant 1 and had been registered, duly stamped and posted the Court was entitled to draw the inference indicated in Section 27, General Clauses Act and to hold that there was sufficient service. In Jogendro Chunder v. Dwarka Nath 15 cal. 681, a notice to quit was sent by a registered letter, the posting of which was proved, and which was produced in Court in the cover in which it was despatched, that cover containing the notice with an endorsement upon it purporting to be by an officer of the Post Office stating the refusal of the addressee to receive the letter. It was held by the Calcutta High Court that this was sufficient service of the notice. A similar view was taken in Girish Chandra v. Kishora Mohan A.I.R. (7) 1920 Cal. 287. Here a notice to quit was given by registered post but the letter containing the notice was returned by the post office, the addressee having refused to accept it. It was held that under Section 114, Evidence Act the Court was entailed to presume that the letter containing the notice reached the defendant and the fact that the letter was returned by the post office as not accepted by the addressee did not destroy the presumption. These authorities leave no doubt in my mind that when the registered letter addressed to the defendant was received back with the remark 'refused' a presumption arose that it was refuged by the defendant him self even though the word 'refused' was not proved to be in his handwriting. A presumption of due service arose as soon as it was established that the cover containing the notice was transmitted by registered post to the defendant.

10. Although the defendant must be deemed to have been duly served on 17th January when the word 'refused' is said to have been written on the envelope containing the notice, has it been proved that the commissioner was at liberty to effect service on the defendant by registered post? If he had no such authority the defendant cannot be said to have been served in accordance with law. The proviso to Rule 10 of Order 5, which has been added by the High Court of Lahore runs as follows:

Provided that in any pase if the plaintiff so wishes the Court may serve the summons in the first instance any registered post (acknowledgment due) instead of in the mode of service laid down in this rule.The expression 'in the first instance' has given rise to a certain amount of difficulty. Does it mean that the power conferred on a Court to eeffect service by registered post can be exercised before it adopts the other modes of service which {have been indicated in Order 5 or does it mean that it can be exercised even after the other modes have been tried. The expression certainly appears to support the view that service can be effected by registered post before and not after any other mode of service has been tried. It follows as a (consequence that it is not open to a Court to effect service by post if an attempt has been made to effect service by another mode. In the present case, the commissioner issued a notice to the defendant requiring him to appear before him on 7th December 1917. This notice was not issued by post, for it bears an endorsement to the effect that the defendant had gone to Ajmer and was not likely to return for some days. This. notice appears to have been sent to the defendant through a process-server or a messenger; it [was not sent to him by post. If any other mode of service was tried in the first instance and if fit failed to yield any fruitful result, it seems to line that it was not open to the commissioner, in (view of the prohibition contained in the proviso, to endeavour to effect service on the defendant by registered post. In this view of the case it seems to me that the defendant was not duly served for 25fch January 1948.

11. For these reasons, it seems to me that although the defendant was aware that the commissioner was anxious to record his statement and although the defendant was deliberately endeavouring to prolong the proceedings, the plaintiff has not been able to establish that the defendant was served in accordance with law. I would accordingly accept the appeal, set aside the order of the Court below and remand the case with the direction that an adequate opportunity be afforded to the defendant to make his statement. If the defendant exercises this right the plaintiff will be at liberty to make a statement in support of his own case. The defendant is obviously taking advantage of a technical flaw in justifying his failure to appear before the commissioner. He will pay a sum of Rs. 300 by way of costs to the opposite party as a condition precedent to his being examined. Parties have been directed to appear before the trial Court on 4th December 1948 when the statement of the defendant will be recorded.


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