M.C. Jain, J.
1. This revision is directed against the order of the District Judge, Udaipur, dated 12-9-78 whereby the order of the Civil Judge, Udaipur, dated 10-1-78 was upheld and the defendant-petitioner's application for setting aside the ex parte decree was dismissed.
2. The facts leading to the present revision petition may briefly be stated as under:
The plaintiffs Arjundas and Smt. Sun deri Bai instituted a suit for arrears of rent and ejectment against the tenantdefendant Prakash Chandra on 4-11-76 on the grounds of personal necessity, sub-letting and default. After registration of the case, summons was ordered to be issued for 10-1-77. On 10-1-77 fresh summons was ordered to be issued for 21-2-77, as the earlier summonses did not return. Summons was issued at the Kankarauli address of the defendant through court. On 21-2-77 summons returned unserved with the endorsementthat the defendant was not available at his given address and is at Udaipur. The plaintiffs submitted an application the summons may be issued through registered post, whereupon the court ordered issue of summons through registered post as well as through court for 12-4-77. On 12-4-77, it appears, the summons sent through court did not return and it returned after the date but the summons sent through registered post returned back with an endorsement of refusal on it. The learned Civil Judge thereupon ordered to proceed ex parte under Order 9, Rule 6, C.P.C. and 29-4-77 was fixed for ex parte evidence. The ex parte order was passed in the following terms:--
^^12&4&77 odhy oknh Jh fgEerflag vjksMk mifLFkr gSa A izfroknh Jhizdk'kpanz xSjgkftj gS A izfroknh dk leu tfj;s jftLVh Hkstk x;k tks bl fjiksVZds lkFk ykSVk gS fd jftLVjh ysus ls euk fd;k A vr% izfroknh ds fo:) O.7R. 6 ds rgr ,d rjQk dk;Zokgh vey esa ykbZtkrh gS a fely okLrs 'kgknr oknh ,d rjQk gsrq fnukad 29&4&77 dksis'k gks A le; 7 A. M.gksxk A
g- mek 'kadj** in english
On 29-4-77 after recording ex parte evidence, the plaintiff's suit was decreed.
3. On 2nd of May, 1977, the defendant submitted an application under Order 9, Rule 13, C.P.C., for setting aside the ex parte decree alleging that he came to know of the decree on 30th April, 1977. It was alleged that he did not receive any summons of the suit. Neither he was personally served for 12-4-77 nor he received any summons through registered post. It was also stated that no postman offered him any registered letter nor he refused any registered letter. He cannot say as to how the postman has written the endorsement of refusal on the registered letter. The defendant filed his own affidavit in support of the application.
4. The plaintiffs submitted their reply to the application in which it was denied that the registered letter was not offered to the defendant and that a wrong endorsement was made by the postman. The postman has discharged his duty in the ordinary course of his business and so there is no reason to disbelieve the endorsement made byhim. The registered letter was tendered to the defendant and he refused to accept it. It was also stated that the defendant deliberately did not appear on 12-4-77 and it is wrong that he had no notice of it. Plaintiff Arjundas filed his own affidavit in support of his reply.
5. The parties led evidence. The defendant Prakash Chandra examined himself as A.W. 1. On behalf of the plaintiffs Arjundas plaintiff appeared as N.A.W. 1 and produced Bhavdutt (N.A. W, 2) and Fatehlal postman (N.A.W. 3). The learned Civil Judge, after hearing the arguments, dismissed the defendant's application and he found that the registered letter was offered to the defendant and he refused to accept the same and as such the summons was duly served on him. It was also observed that there were no other grounds for setting aside the ex parte decree. It was not alleged by the defendant that he was prevented by any other sufficient cause from appearing when the suit was called for hearing. The only ground taken was that the summons was not duly served on him, which was found against him. The defendant went in appeal against the order of the learned Civil Judge, but the order of the learned Civil Judge was upheld by the learned District Judge and it was held that the service of summons was effected in accordance with the Order 5, Rule 19-A. Dissatisfied with the order of the learned District Judge the defendant has preferred this revision petition.
6. I have heard Shri M. M. Singhvi, counsel for the defendant-petitioner and Shri S.C. Bhandari, counsel for the plaintiffs-respondents, at length.
7. Shri Bhandari, learned counsel for the plaintiffs-respondents raised a preliminary objection regarding the maintainability of the revision petition and submitted that both the courts below have held that the defendant refused to accept the registered letter and thus summons was duly served on him in view of the provision of Order 5, Rule 19-A. The impugned order does not suffer from any junsdictional error and so no revision lies against the impugned order. He urged that the courts below have not acted illegally or with material irregularity in the exercise of their jurisdiction, so the present revision is not covered under Clause (c) of Sub-section (1) of Section 115 of the Code of Civil Procedure. Shri Bhandari vehemently urgedthat in order to attract the provision of Section 115(1)(c) there should be an illegality or material irregularity in the exercise of its jurisdiction by the subordinate court. In passing the orders by the Civil Judge and the District Judge, both the courts have not acted in the exercise of their jurisdiction illegally or with material irregularity. Their orders do not suffer with any infirmity or defect of the nature specified in Clause (c) of Sub-section (1) of Section 115, so such orders are not amenable to the revisional jurisdiction of this Court. The subordinate courts were only required to see as to whether summons has been duly served or not and after recording of the evidence, the courts were satisfied that the summons was duly served. The courts have not in any manner acted illegally or with material irregularity in the exercise of their jurisdiction, so the case is not covered under Clause (c) of Sub-section (1) of Section 115, C.P.C., and as such the present revision is not maintainable.
8. Shri Singhvi, on the other hand, met the preliminary objection strenuously contending that the order passed on 12-4-77 was not in conformity with Order 5 Rule 19A, C.P.C. There was no declaration made by the court that the summons was duly served. In the absence of such a declaration, the court could not proceed ex parte against the defendant. Making of a declaration was a mandatory and imperative requirement of Order 5, Rule 19-A and as such non-compliance of this provision clearly makes out a case that the learned Civil Judge, while passing the ex parte order on 12-4-77 acted illegally or with material irregularity in the exercise of its jurisdiction. The revision is, therefore, competent in view of the fact that at the time of the hearing of the application for setting aside ex parte decree the courts below ought to have considered as to whether the ex parte order passed on 12-4-77, was in conformity with Order 5, Rule 19-A, C.P.C. The courts below have acted in disregard of that provision and the manner in which the courts below exercised their jurisdiction only points that they have so exercised their jurisdiction illegally or with material irregularity. The learned counsel also submitted that the courts below acted illegally or with material irregularity in holding that the defendant refused to accept the registered letter, even when the postman Fatehlal has notproved the endorsement. Neither the original registered letter was exhibited in his statement nor his endorsement was put to him specifically and further identity of the defendant too is not established by the statement of Fatehlal, so the courts have acted illegally in the exercise of their jurisdiction. On this ground, as well, the revision is competent. The learned counsel also submitted that if a glaring defect or irregularity in the exercise of jurisdiction comes to the notice of this Court, this Court is competent to rectify the same in exercise of its revisional jurisdiction and further the question of compliance of the provisions of Order 5, Rule 19-A can be examined by this Court in revision even when this point did not arise for consideration before the courts below. If any such point had been left out of consideration by the courts below, though having not been raised, still it would be considered that the courts below have acted illegally or with material irregularity in exercise of their jurisdiction. Shri Singhvi supported his submission by referring to some case law.
9. Shri Bhandari then submitted that it was not challenged in the courts below that compliance of Order 5, Rule 19-A, C.P.C., has not been made and this point cannot be raised for the first time in this revision. Even otherwise Section 115(1)(c), C.P.C., is not attracted on this ground. As regards the other ground Shri Bhandari urged that it was within the jurisdiction of the courts below to find out on the material on record, rightly or wrongly, that the defendant refused to accept the registered letter issued by the Civil Judge's court and thus summons was duly served, so the second ground is not available to the petitioner for exercise of the revisional jurisdiction.
10. I have given my serious and anxious consideration to the rival contentions advanced before me on the question of maintainability of this revision petition. The scope of Section 115, C.P.C., as it stood prior to 1976 Amendment, has come up for consideration in series of decisions before the Supreme Court. This Court too had an occasion to consider its scope in the case of Harakchand v. State of Rajasthan (1970 Raj LW 320) (FB). After reviewing the case law in para 12 of the report it was observed as under:--
'The sum and substance of the matter is that unless an error of law or factcommitted by the subordinate court has arisen because (1) there is illegal assumption of jurisdiction, or (2) there is failure of exercise it, or (3) 'there is illegality or material irregularity committed in the manner in which it is exercised, the order passed by the subordinate court cannot be revised simply on the ground that the order is erroneous either on a point of fact or on a point of law.'
11. In M/s. D. L. F. Housing and Construction Co. (P.) Ltd. v. Sarup Singh (AIR 1971 SC 2324) their Lordships of the Supreme Court observed that the mass of reported cases only serve to show that the High Courts do not always appreciate the limits of their jurisdiction under Section 115, C.P.C. After taking into consideration the Privy Council decisions in Rajah Amir Hassan Khan v. Sheo Baksh Singh (1883-1884) 11 (1883-1884) 11 Ind App 237 (PC) and Balakrishna Udayar v. Vasudeva Ayyar (44 Ind App 261: AIR 1917 PC 71) and approved by the Supreme Court in Keshar Deo v. Radha Kissan (1953 SCR 136: AIR 1953 SC 23), their Lordships observed as under:--
'The words 'illegally' and 'with mate' rial irregularity' as used in this Clause do not cover either errors of fact or of law, they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.'
12. The same view is reiterated in the Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar v. Ajit Pra-sad Tarway (AIR 1973 SC 76) in which raliance was placed on Pandurang Dhoodi v. Maruti Hari Jadhav (AIR 1966 SC 153) and D. L. F. Housing & Construction Co. (P.) Ltd., New Delhi v. Sarup Singh (AIR 1971 SC 2324) (supra); Hegde, J., speaking for the Court, ob-served that it is not the conclusion of the High Court that the first Appellate Court had no jurisdiction to make the order that it made. The order of the First Appellate Court may be right or wrong; may be in accordance with lawor may not be in accordance with law;but one thing is clear that it had jurisdiction to make that order. It is not thecase that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That beingso, the High Court could not have invoked its jurisdiction under Section 115of the Civil Procedure Code.
13. Shri Singhvi referred to a decision of the Supreme Court, M. L. Sethi v. R. P. Kapur (AIR 1972 SC 2379) andon the basis of this authority urged that where there is breach of any provisionof Saw then jurisdiction under Section 115 can in invoked and he urged that in thiscase Mathew, J., has considered the observations of Lord Reid and Lord Pearce in Anisminic Ltd. v. Foreign Compensation Commission ((1969) 2 AC 147) and on the basis of the dicta of the majority of the House of Lords Mathew, J., observed that we have moved away from the traditional concept of 'jurisdiction. The effect of the dicta in that case is to reduce the difference between the jurisdictional error and error of law within jurisdiction almost to a vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. It appears that in paras 10 and 11 Mathew, J., considered the concept of 'jurisdiction' as found in English law and whatever has been observed in para 11 of the report cannot be said that the settled legal position in India is in any way changed. Mathew, J., in para 8 observed that the jurisdiction of the High Court under Section 115 of the Civil Procedure Code is a limited one and after making this observation,has placed reliance on three Privy Council decisions, namely, Rajah Amir Khan v. Sheo Bakash Singh (1883-1884) 11 (1883-1884) 11 Ind App 237 (PC) (supra), Balakrishna Udayar v. Vasudeva Aiyer (AIR 1917 PC 71)(supra) and N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras (AIR 1949 PC 156) and three Supreme Court decisions Manindra Land Building Corporation Ltd. v. Bhutnath Banerjee (AIR 1964 SC 1336), Abbasbhai v. Gulamnabi (AIR 1964 SC 1341) and Pandurang Dhondi's case (AIR 1966 SC 153) (supra).
14. Thus, in view of the series of the' authoritative pronouncements of the Supreme Court, the law appears to be well settled with regard to the scope of Section 115(1)(c), C.P.C. It is only when some illegality or material irregularity is committed by the subordinate court in the manner of the exercise of its jurisdiction, that is, if some procedural errors in exercise of its jurisdiction are committed resulting into any illegality or material irregularity, such errors can be rectified by the High Court, while exercising the powers under Section 115(1)(c) C.P.C. After the amendment of Section 115 by the C.P.C. Amendment Act No. 104 of 1976, a proviso has been added in Sub-section (1). Even if the order falls under any of the clauses of Section 115(1), the High Court will have no jurisdiction to vary or reverse any order unless the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. There are two clauses of the proviso. So far as the present case is concerned Clause (a) of the proviso has no relevance. In view of clause (b) of this proviso, the petitioner is further required to show that the impugned order would occasion a failure of justice or would cause an irreparable injury to him.
15. Viewed in the light of the law discussed above, in my opinion, this revision petition is maintainable on the first ground urged by the learned counsel for the petitioner. Without entering into the merits of the first ground, at present, as regards the maintainability of revision on this ground, it may be stated that the question of compliance of Order 5, Rule 19-A by the court in making a declaration regarding due service, is a procedural matter and if any error in this regard has been committed, then it would be considered a procedural error amounting to material irregularity in the exercise of the jurisdiction by the court and in case it is found that compliance of Order 5, Rule 19-A as to express declaration of due service is a must and the same has not been made, then theorder without compliance if allowed to stand, it would occasion failure of justice or would cause irreparable injury to the defendant. Therefore, the revision' petition would lie.
16. The learned counsel for the plaintiffs-respondents vehemently urged that the impugned order is the order of the learned District Judge and there is no illegality or material irregularity in the exercise of the jurisdiction in the order of the learned District Judge or even of the learned Civil Judge, so this Court should not enter into the legality or , otherwise of the ex parte order passed on 12-4-1977. The supervisory jurisdiction of the Court can only be exercised in respect of the impugned order. I am unable to agree with this contention of the learned counsel. In an application for setting aside ex parte decree, the question of summons having been duly served is required to be examined and in that connection, it is to be seen as to whether compliance of Order 5, Rule 19-A has been made and if the courts, while deciding an application for setting aside ex parte decree takes a wrong view, then it is open to correction by this Court under its powers under S- 115, C.P.C.
17. It is next contended by Shri Bhandari that first ground regarding non-compliance of Order 5, Rule 19-A, C.P.C.was never raised by the defendant in the courts below and the courts belowwere never called upon to decide this question. The defendant should not be allowed to raise this contention for thefirst time in this revision petition. Inthis connection, he placed reliance on Bhagwan Gold and Silver Store,Rewari v. Hissar Iron and Mechanical Works (AIR 1970 Punj 393). In this casesummons in the first instance was issued to the defendant. On receipt of the report on the first summons an order for service by registered post was made and before any summons was returned un-served, the order for substituted service was made. It was held that both the orders were not in accordance with the provisions of the Code. It was observed that as the defendant did not raise any objection in either of the courts below, the High Court will not interfere in revision. The learned counsel further referred to another decision of this Court Hakim Ghulam Mohammad v. Dr. Zahoor Mohammad (AIR 1970 Raj 171). In this case his Lordship Jagat Narayan, J., (as he then was), observed that a new pointthat an agreement embodied in an unregistered document can be used for collateral purpose cannot be raised for the first time in revision.
18. As against this, Shri Singhvi cited Smt. Jaggi v. Bhagwan Das (1969 All) LJ 1144). In this case K. B. Asthana, J., (as he then was), observed that the very object of exercise of revisional jurisdiction by the High Court is to correct the record. When the record is summoned under Section 115 of the Civil Procedure Code by the High Court in exercise of its revisional jurisdiction, it becomes its duty to correct the record if it is found to be defective, no matter any party has raised any such ground in revision or not, if in the circumstances of the case it is necessary to do so in the interest of justice. After summoning the records the High Court can pass any order it deems fit. It was a case for setting aside ex parte decree. It was observed that it is the duty of the court itself to satisfy that the summons was duly served before proceeding to hear the suit ex parte against the defendant under Order 9, Rule 6, C.P.C., the court is not empowered to proceed ex parte against the defendant unless it is proved that the summons were duly served. If the court fails in its duty and defendant comes to know of it at any subsequent stage in the proceedings in the suit that would not remove the defect which has crept in the record and the order passed under Rule 6 of the Order 9 of the Code to proceed ex parte will continue to remain an illegal order. It was also observed that a party can be penalised for not raising a plea if it pertains to anything done by the adversary but if the court itself commits any procedural error, whether or not a party raises any specific plea, it would be immaterial. On merits it was found that the summons were not duly served so the application under Order 9, Rule 13, C.P.C, was allowed in revision.
19. Mr. Singhvi also cited Manoranjan Samanta Kumar v. Brurrdabati Veergam (AIR 1969 Orissa 52). In this case an ex parte decree was passed against a minor on non-appearance of his guardian. The court failed to appoint guardian for the minor. It was held that the decree against the minor can be set aside in revision even if petition is not filed by the minor, as the decree against the minor is a nullity even though the matter came to the notice of the High Court on the revision fried, not by theminor or his mother, but by the opposite party and it was observed that the High Court has wide powers to suo motu exercise its revisional j urisdiction. To the same effect are the observations in Basantibai v. Veshnukumar (AIR 1956 Madh B 125). It was observed that the section gives discretionary power to the High Court to interfere or not.
20. It may be stated that there is no hard and fast or an inflexible rule that if the point has not been urged in the courts below, that point may not be allowed to be raised for the first time in revision petition, as the remedy by way of revision is discretionary and not a matter of right, the court may, looking into the facts and circumstances of each case allow any point to be raised for the first time in the revision petition. Looking to the importance of the question regarding non-compliance of Order 5, Rule 19-A, the discretion needs to be exercised in favour of the petitioner and it would be proper to allow the petitioner to raise this point in this revision petition,
21. Shri Bhandari further contended that this point should not be allowed to be raised for the first time in revision petition in view of the fact that the plaintiff will be seriously prejudiced. The plaintiff would have defended the alleged ground in the light of the proviso of Order 9, Rule 13, C.P.C., which has been newly added by the 1976 Amendment. The proviso to Order 9, Rule 13, C.P.C., lays down that no court shall set aside the decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Reference in this connection was made to the case of Raghubir Sahai Bhatnagar v. Bhakht Sajjan (AIR 1978 All 139). In this case the summons was refused by the defendant-tenant in a suit for arrears of rent and ejectment and there was no affixure of summons as required by Order 5, Rule 17. It was held that this defect was not substantial enough to vitiate the service of summons. The purpose of issuing summons is to give intimation to the defendant of the suit, the court and the date fixed for his appearance. It was further held that proviso to Order 9, Rule 13 as already added by the Allahabad High Court(which has now been engrafted in Rule 13 by C.P.C. Amending Act No. 104 of 1976) would come into play and ex parte decree cannot be set aside on the ground of irregularity in the service of summons if the court is satisfied that the defendant had knowledge and had sufficient time to appear and answer the plaintiff's claim. It may be stated that proviso would be attracted only in a case where there has been an 'irregularity in the service of summons'. If there has been no irregularity in the service of summons, the proviso would not be attracted. Non-declaration of due service by the court cannot be considered to be an irregularity in the service of summons, as such, proviso would not come into' play at all. Thus no question of any prejudice will arise.
22. As regards the maintainability of the revision petition on the second ground, I am clearly of the opinion that revision does not lie on that ground. There does not appear to be any procedural error committed by the courts below in exercise of their jurisdiction and both the courts have recorded a concurrent finding of fact that the defendant refused to accept the registered letter with acknowledgement due. The endorsement of refusal on registered letter raises a presumption that the registered letter was offered to the addressee and was refused by him. This presumption is no doubt rebuttable and the defendant has come into the witness box to rebut, but the plaintiffs have also examined the postman who has clearly deposed that the registered letter in question was offered to the defendant, but he refused to accept the same and he made a remark in that regard on the registered letter. In face of the statement of the postman Fatehlal, it is proved that the defendant refused to accept the registered letter. Original letter was, shown to him and with reference to that registered letter, he has deposed that after refusal by the defendant, remark to that effect was made by him. It is true that specific remark was not put to him in his statement and he has not stated that particular remark marked A to B or so is in his hand bearing his initials, but on that basis, it cannot be said that the remark is not proved, when he has said that the remark of refusal was made by him on the registered letter. There is no other remark of refusal except the one endorsement of refusal on the registered letter. In this connectionreference may be made to Pakharsingh v. Kishansingh (AIR 1974 Raj 112). In that case, notice was sent by the plaintiff to the defendant, which returned with an endorsement of refusal. There was only bare denial of the defendant in his statement and in that connection it was observed that the defendant's bare denial is wholly insufficient to rebut the presumption. In the present case there is the testimony of the postman as well. Thus, on the second ground, the revision petition is not maintainable.
23. Now, I proceed to examine the the merits of the first ground.
24. In order to properly appreciate the respective contentions of the parties, it is essential to look to the provisions of Order 5, Rule 19-A. For facility of reference it is reproduced hereunder:--
'O. V. Issue and service of Summons.-
'Rule 19-A. Simultaneous issue of summons for service by post in addition to personal service-- (1) The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain:
Provided that nothing in this Sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary. (2) 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 rendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in this Sub-rule 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 the issue of the summons.'
25. The above provision has been introduced for the first time by Section 55, C.P.C. Amendment Act No. 104 of 1976. It provides for simultaneous issue of summons for service by post in addition to personal service. Sub-rule (2) provides that when an acknowledgment purporting to be signed by the defendant 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 had refused to take delivery, the Court issuing the summons shall declare that the summons had been duly served and the proviso lays down that this declaration shall be made by the court if the acknowledgment is lost or mislaid or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons.
26. On behalf of the petitioner Shri Singhvi strenuously and vehemently contended that the learned Civil Judge did not make any declaration as contemplated in this rule, while drawing ex parte proceedings on 12-4-77. The legislature has used the word 'shall', which expresses the intention of the legislature and compliance of this rule is mandatory and imperative. Thus, there has been non-compliance of this mandatory provision, so the court was not justified to proceed ex parte against the defendant and consequently the ex parte decree deserves to be set aside. Shri Singhvi urged that the mandatory character of the rule is reinforced by the proviso. Shri Singhvi supported his contention by citing case law on analogous provision contained in Order 5, Rule 19, C.P.C. He referred to a Full Bench decision of the Madras High Court Parasuram Odayar v. Appadurai Chetty (AIR 1970 Mad 271) and the two decisions of Kerala High Court, -- Daveed Asser-vandam v. Krishna Pillai Govinda Pillai .(1970 Ker LT 907) and Pazhekottal Nabeesu v. Pazhekottal Kunhamina (AIR 1978 Ker 143).
27. Shri Bhandari, on the other hand, contended that there has been substantial compliance of Rule 19-A of Order 5, C.P.C. The court had applied its mindto the service of summons sent to the defendant through registered post. The court recorded in detail that the registered letter in which summons was sent, has returned with the report of refusal so the proceeding are drawn ex parte against the defendant under Order 9, Rule 6, C.P.C. Under Order 9, Rule 6, C.P.C., ex parte proceedings can only be drawn when summons is duly served. It would appear that the court had in mind the question of the service on the defendant in view of the fact that the court specifically recorded to proceed under Order 9, Rule 6, C.P.C. Shri Bhandari urged that the contemplated declaration under Rule 19-A, is implicit in the order dated 12-4-77. He further urged that the cases cited by Shri Singhvi on the provision contained in Rule 19 of Order 5, can be of no help in view of the fact that Rule 19 is optional and discretionary in nature. If the courts find that summons has been duly served, the court is required to declare so. Instead of making such a declaration, the Court is empowered to pass any other order regarding service of summons, as the court thinks fit. Alternatively he contended that even in respect of the provision contained in Order 5, Rule 19 there is divergence of opinion and he referred to the cases in which a different view has been taken. These cases are -- Sampatlal Keshan v. Baliprasad Shah (AIR 1950 Assam 6); Tahal Singh v. Chainchal Singh (AIR 1934 Lah 985 (2)); and Rameshwar Bakhsh Singh v. Balraj Kuar (AIR 1932 Oudh 327).
28. The respective contentions of the learned counsel need careful consideration and it is to be seen as to whether compliance of Order 5, Rule 19-A, C.P.C., is required to be made only in the terms of this provision or whether the contemplated declaration can be inferred from the order passed by the Court or may be taken to be implicit? In case explicit declaration is not made, would it vitiate the ex parte order and in consequence the ex parte decree. There are some distinctive features in the provision contained in Rules 19 and 19-A. Rule 19 has reference to Rule 17. Rule 17 of Order 5, C.P.C., lays down the procedure when the defendant refused to accept service, or cannot be found and in case summons is returned under Rule 17 and the return has not been verified by the affidavit, it is imperative for the court to examine the serving officer on oath or cause him to be so examined. Even ifthe return has been verified by the affidavit of the serving officer, still it is open to the court to examine him on oath. Rule 19 further lays down that the court is empowered to make further inquiry in the matter as it thinks fit, and after doing so there are two options left to the court either it shall declare that the summons has been duly served or it shall order such service as it thinks fit. These expressions that the court 'shall declare that the summons 'has' (in Rule 19) or 'had' (in Rule 19-A) been duly served' occur in the two provisions, but in different context and purpose. In Rule 19-A there is no option left to the court in view of the endorsement of the refusal except to declare that the summons had been duly served, but in case of Rule 19 the contemplated declaration would arise only after examination of the serving officer or such further inquiry as the court thinks fit. It is only after the satisfaction of the court that the summons has been served, the court is required to make a declaration that the summons has been duly served and on that basis alone it can be held that there was an application of mind by the court. In the absence of such a declaration, it may be said that there was no application of the mind by the court on the question of service. It is in the light of this analysis and scrutiny of the two provisions, the question is required to be examined as to whether strict compliance is required to be made in Rule 19-A. The Madras case (AIR 1970 Mad 271) (FB) and the Kerala cases 1970 Ker LT 907 and AIR 1978 Ker 143 (cited supra), no doubt, support the stand taken by Shri Singhvi and it has been held in these cases that the provision of Order 5, Rule 19 is imperative and express declaration of due service is required to be made. In the Madras case (supra) Venkataraman, J. concluded the matter in para 45 and observed that it is necessary that there should have been strict compliance with the provisions of Order 5, Rule 19 by the executing court when it proceeded to hold the sale in the absence of the judgment-debtor. It was further observed that it should also declare expressly that the summons has been duly served, though the exact form of that declaration may be in any convenient form, such as, 'it is declared that the defendant has been duly served' or 'it is declared that the service is sufficient' or simply 'defendant duly served' or 'service sufficient'. What isimportant is that the endorsement of the Court itself should indicate that the presiding officer has applied his mind and considers that the summons has been duly served. A contrary view has been expressed in the cases referred to by Shri Bhandari. So far as the present case is concerned it is not necessary for me to agree or disagree with the one view or the other, as these cases are based on the nature of the provision contained in Order 5, Rule 19 and there is no case cited before me in respect of the provision of Order 5, Rule 19-A, C.P.C. The question arises that when there is no option to the court except to make a declaration of due service when there is an endorsement of refusal purporting to be made by the postal employee, is it imperative for the court to make such an explicit declaration? In my humble opinion, it would be too hyper-technical a view that there should be such an explicit declaration. What Rule 19-A contemplates is that the court should examine the registered letter containing the summons and look into the endorsement made by the postal employee regarding the refusal and thereafter the court may proceed to pass an ex parte order as contemplated under Order 9, Rule 6, C.P.C., on the basis that the summons has been duly served. It would be sufficient or substantial compliance of Order 5, Rule 19-A. In Pratap Singh v. Shri Krishna Gupta (AIR 1956 SC 140), it has been observed as under (at p. 141):--
'Tendency of the Courts towards technicality is to be deprecated; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice causes; and when the legislature does not itself state which Judges must determine the matter and exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines.'
How such a provision should be interpreted? In this connection I may refer to Sutherland's 'Statutes and Statutory Construction', Third Edition (Volume 3) Article 5810 and Article 5808 at pp. 91 and 88. In Article 5810 while dealing with Statutory directions to courts it is stated that the general rule whereby directions to public officers for the protection of public or private rights are mandatorymay be applied in a like manner to directions to courts; and in Article 5808, it is stated as under: --
'Any principles of substantial compliance have been employed to escape the necessity of invalidating proceedings and at the same time avoid a positive holding that a provision is merely directory.'
29. I may profitably refer to some observations of their Lordships of the Supreme Court in State of Bombay v. Purushottam Jog Naik (AIR 1952 SC 317). In this case the validity of the order of detention expressed in the name of the Government of Bombay was in question. While considering the provision of Article 166(1) Bose J., speaking for the Court expressed as under (at p. 318):
'Now we do not wish to encourage laxity of expression, nor do we mean to suggest that ingenious experiments regarding the permissible limits of departure from the language of a Statute or of the Constitution will be worthwhile, but when all is said and done we must look to the substance of Article 166 and of the Order.
The short answer in this case to, that the order under consideration 'is' 'expressed' to be made in the name of the Governor because it says 'by order of the Governor'. One of the meanings of 'expressed' is to make known the opinion or the feelings of a particular person and when a secretary to Government apprehends a man and tells him in the order that this is being done under the orders of the Governor, he is in substance saying that he is acting in the name of the Governor and on his behalf, is making known to the detenu the opinion and feelings and orders of the Governor. In our opinion, the Constitutiondoes not require a magic incantation which can only be expressed in a set formula of words. What we have to see is whether the substance of the requirements is there.''
30. Shri Singhvi laid much stress on the use of expression 'shall' and on that basis argued that the provision is mandatory. In this connection it may be stated that by the use of expression 'shall' prima facie it can be said that it is mandatory. The word 'shall' in its ordinary significance is imperative, but much would depend upon the real intention of the legislature. For ascertaining the real intention of the legislaturethe court, may consider the nature of the statute and the consequences which would flow from construing it one way or the other and whether the provision, in case is avoided entails with any penalty and, above all, whether the object of the legislature will be defeated or furthered. There is mass of case law on the subject as to whether the expression 'shall' should be construed in an imperative way or otherwise.
31. Maxwell in his treatise on ''Interpretation of Statutes', Twelfth Edition, Chapter 13, at pp. 314-15, expressed as under :--
'It is impossible to lay down anygeneral rule for determining whether a provision is imperative or directory. No universal rule, said Lord Campbell L. C., 'can be laid down for the construction of statutes, as to whether mandatoryenactments shall be considered directoryonly or obligatory with an implied nullification for disobedience. It is the dutyof Courts of Justice to try to get at thereal intention of the Legislature bycarefully attending to the whole scopeof the statute to be construed.' And Lord Penzance said 'I believe, as far asany rule is concerned, you cannot safelygo further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relationof that provision to the general object intended to be secured by the Act; andupon a review of the case in that aspect, decide whether the matter is what is called imperative or only directory.'
32. If the provision of Rule 19-A is judged in the light of the above principles then in my opinion, this cannot be considered to be the intention of the legislature that unless the court records its declaration that summons has been duly served the order proceeding ex parte against, the defendant would be rendered illegal. It cannot be the intention of the legislature that the declaration of due service should be recorded in sp many words. The court is required to see how service is effected and then to proceed ex parte. The intention behind the provision can be gathered from Clause 55 (iv) of the Joint Committee Report and Sub-rule (2) of the proposed Rule 19-A has been amended in the light of the report. Clause 55 (iv) of the Report says:--
'Clause 55 (iv).-- The Committee also feel that in the case of issue of summonsfor service by registered post, if the defendant refuses to take delivery of the summons, when tendered to him, or the fact that the acknowledgment has been lost or mislaid or has not been received back by the Court for any other reason within thirty days from the date of issue of summons, the Court should be authorised to draw a presumption that the summons had been duly served on the defendant.'
The Code of Civil Procedure was amended by Amendment Act No. 104 of 1976. One of the aims and objects of the amendment was to curtail the possible delays in journey of litigation and with that end in view several provisions have been introduced to curtail the delays. One of such provisions is introduction of Rule 19-A in Order 5. It was noticed that service of summons takes a lot of time and summonses do not return served or unserved in time, possibly may be as a result of manoeuvring and manipulation. In order to meet this contingency, the legislature introduced Rule 19-A to effect service by post simultaneously or in addition to, personal service. Sub-rule (2) contemplates that the Court shall declare that summons had been duly served, in case the postal article containing 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 had refused to take delivery of the same. The very object of the rule would be frustrated in case it is held that the court should record its declaration in these words that the summons had been duly served. Such a declaration, in my opinion, can be inferred from the order. That would be substantial compliance of Sub-rule (2) of Rule 19-A. Behind the expression 'shall, declare that the summons had been duly served' the intention of the legislature appears to be only that there should be substantial compliance of this provision and the order passed should be indicative of the fact that the court had applied its mind as to whether the postal article has returned with an endorsement contemplated in Sub-rule (2). If we look to the order dated 12-4-77, it is amply borne out from it, that the court had applied its mind. The court had recorded that the summons was sent through registered post to the defendant, which returned with an endorsement of refusal. Thereupon, the court ordered to proceed under Order 9.Rule 6, C.P.C. It may be stated that the court had in its view the provision of Order 9, Rule 6, which lays down that where the defendant does not appear when suit is called on for hearing, then if it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte. It was amply proved that the summons was duly served as the defendant refused to accept the registered letter containing the summons tendered to him. Thus, having in view the provision of Order 9, C.P.C., the court ordered to proceed ex parte. In this view of the matter, in my opinion, substantial compliance of Rule 19-A was made by the Court and I do not find any illegality or material irregularity in the exercise of its jurisdiction by the court in passing the order dated 12-4-77.
33. The learned counsel for the petitioner submitted that the consequences are too harsh and severe, in case the ex parte decree is allowed to stand without the defendant being given a fair and reasonable opportunity to defend himself. In this connection it may be stated that the petitioner has moved the application for setting aside ex parte decree solely on the ground that the summons was not duly served on him and that no registered letter was offered to him by the postman. On facts, it has ' beenfound that the petitioner refused to accept the registered letter and that the summons was duly served. No other reason has been stated by the petitioner which prevented him to appear whenthe suit was called for hearing. UnderOrder 9, Rule 13, C.P.C., the ex parte decree can be set aside either when summonshas not been duly served or when the defendant was prevented by any sufficient cause from appearing when the suit was called upon for hearing. As stated above, the summons had been found to be duly served and so this ground is not available to the defendant for setting aside the ex parte decree and no other ground had been taken by him, which prevented him to appear. Thus there is no choice left to the Court except to reject the petitioner's application for setting aside the ex parte decree. No premium can be put on the wilful conduct of default of appearance by the defendant,
34. In the result, I do not find any force in this revision petition, so this revision petition is hereby dismissed. Inthe circumstances of the case I leave the parties to bear their own costs of the petition.