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Nataraja Iyer Vs. Nacharammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 2532 of 1974
Judge
Reported inAIR1977Mad221; (1977)1MLJ47
ActsCode of Civil Procedure (CPC), 1908 - Order 5, Rule 9(1) and 9(2); Code of Civil Procedure (CPC) (Amendment) Act, 1963 - Order 5, Rule 9
AppellantNataraja Iyer
RespondentNacharammal
Excerpt:
- - the evidence adduced for the delivery of possession is unconvincing......numbered as i. a 1041 of 1973. the decree was passed on 1-6-1971. the petition to set aside the ex parte decree was filed on 30-12-1972 contending that the petitioner was not served with summons and that she came to know about the ex parte decree only on 14-12-1972. this petition was resisted by the plaintiff who contended inter alia that the defendant was served with summons by post, that possession of the building in pursuance of the ex parte decree was also taken in execution proceedings, and that, therefore, the defendant should have been aware of the posing of the ex parte decree against her. the defendant contended that no possession was delivered and that only records have been created to make it appear that possession had been delivered. her contention was that she had been.....
Judgment:
ORDER

1. This is a civil revision petition against the order of the learned Principal District Munsif. Mayuram, setting aside the ex part decree passed in O. S. 201 of 1971 on a petition filed by the defendant and numbered as I. A 1041 of 1973. The decree was passed on 1-6-1971. The petition to set aside the ex parte decree was filed on 30-12-1972 contending that the petitioner was not served with summons and that she came to know about the ex parte decree only on 14-12-1972. This petition was resisted by the plaintiff who contended inter alia that the defendant was served with summons by post, that possession of the building in pursuance of the ex parte decree was also taken in execution proceedings, and that, therefore, the defendant should have been aware of the posing of the ex parte decree against her. The defendant contended that no possession was delivered and that only records have been created to make it appear that possession had been delivered. Her contention was that she had been granted patta by the Government of the suit site. The learned District Munsif found that only paper delivery had been made and that the plaintiff had not proved the service of summons on the defendant. There is no reason to differ from the view of the learned District Munsif that delivery was recorded only on paper and that physical possession had not been given. The evidence adduced for the delivery of possession is unconvincing. The respondent (plaintiff) who was examined as R. W. 1n the Court below, was not in a position to say whether or not the defendant continued to live in the suit house. On the other hand, the defendant, who examined herself as P.W. 1 and Nagappan who was examined as P.W. 2 have proved that the defendant has been and is still living in the suit house and that she has been living there uninterruptedly. Therefore, there is no doubt about the fact that in collusion with the Amin, records have been created by the plaintiff to make it appear that possession was delivered. Hence, the defendant would not have known about the passing of the ex parte decree unless summons had been served on her as contended by the plaintiff. The summons was sent to her by post. The defendant deposing as P.W. 1 has sworn that she has not received any summons or notice in connection with the suit. The alleged acknowledgment of the defendant has not been exhibited. The postman has not been examined to prove that he has served the summons on the defendant. Assuming that a postal acknowledgment purporting to be the acknowledgment of the service of the summons on a woman called Nacharammal had been returned to the Court, there is nothing to show that the person Nacharammal on whom the summons was served is the defendant in this case.

2. As per O. 5. R. 9(1) and (2), C.P.C., as it stands now, the service of summons by post on a party does not appear to be sufficient to confirm an order passed ex parte, if the concerned party challenges the service of summons by post and denies having received the same. Order 5, R. 9, C.P.C. as amended on 27-3-1963 is as follows:--

9.(1) Whether the defendant resides in India, whether within or without the jurisdiction of the Court in which the suit is instituted, the Court may direct the proper officer to cause a summons under this order to be addressed to the defendant at the place, where he ordinarily resides or carries on business or works for gain, and sent to him by registered post prepaid for acknowledgment.

(2) Where the summons is returned unsaved or the defendant does not appear on the day, fixed in the summons. The court may direct that the summons shall be delivered or sent to the proper officer to be served by him or one of his subordinates on the defendant.

(3) The proper officer may be an officer of a Court other than that in which the suit is instituted and where he is such an officer the summons may be sent to him by post or in such other manner as the Court may direct.

(4) Notwithstanding anything contained in sub-cl. (1) where proceedings in Court are taken for:

(1) issue of an injunction, or

(2) punishment of a party for contempt of Court; or

(3) bringing to sale any property in execution of a decree or order of Court, notice shall be served only in the manner provided for in sub-cl. (2).'

It would appear form O. 5, R. 9(2), C.P.C. that even though the summons is served by post, if the defendant does not appear on the day fixed on the summons, the Court has to direct that the summons shall be delivered or sent to the proper officer to be served by him or one of his subordinates on the defendant. In the context in which the word 'may' is used, it has to be interpreted as 'shall'. The word 'may' includes 'may not' but is also capable of meaning 'must' or 'shall'. depending upon the context in which it is used. Where a discretion is conferred upon the Court coupled with an obligation, the word 'may' denotes 'shall'. It is the duty of the Courts in construing a statute to give effect to the intention of the Legislature. A literal meaning may defeat the object of the Legislature. The word 'may' has been used by the Legislature in some cases as a matter of pure conventional courtesy, though the word is intended to be mandatory in force. In order to interpret the legal import of the word 'may', the context in which the word is used and the background against which the word has been used and the purpose and the advantage sought to be achieved have to be considered. If the service of summons by post by itself, when acknowledgment is duly received, is to be deemed sufficient service, the provision for the Court directing that the summons should be delivered or sent to the proper officer to be served by him or one of his subordinates on the defendant, if the defendant does not appear even after the summons is served, is wholly unnecessary and would not have been incorporated in O. 5. R. 9. (2), C.P.C. Obviously because the Court has no control over the postman and there is every possibility of the summons or notice being served on a wrong person with the same name, service of summons though court again, if the defendant does not appear after the purposed service of summons by post, was deemed necessary and laid down in the aforesaid rule. Where the defendant does not dispute having received the summons by post, no problem would arise. But where such dispute arises, service of summons by post cannot be held to be sufficient to sustain an ex parte decree or ex parte order. In these circumstances, the order of the lower Court is confirmed and this petition is dismissed with costs.

3. Revision petition dismissed.


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