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T.C. Banerjee Vs. B.V.S. Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 3459 of 1974
Judge
Reported inAIR1976Cal425,80CWN325
ActsCode of Civil Procedure (CPC) , 1908 - Section 27 - Order 5, Rule 20A and 20A(1)
AppellantT.C. Banerjee
RespondentB.V.S. Rao
Appellant AdvocateTapas Ch. Roy, ;Alak Chakraborty and ;Manab Banerjee, Advs.
Respondent AdvocateS.P. Sen, Adv.
Cases ReferredSm. Jaswant v. Ravinder Singh
Excerpt:
- .....unacceptable for some reason or other and it does not, in my opinion, amount to or mean return of summons unserved as contemplated under the rule. accordingly for application of rule 20-a there must be return of summons unserved to the court which is not the case here.8. as has been held in dhal singh v. anand rao, : air1960mp378 the court is empowered to issue summons to be served by registered post when summons issued to be served by ordinary process is returned unserved. this rule, it wag held, does not enable the court to issue summons by registered post at the first instance nor does it enable the court to do so before summons by ordinary process is returned unserved. the same view was taken in sm. jaswant v. ravinder singh, 1965 punj lr notes on case no. 135 and it was held that.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. The delay in moving the application under Section 115 of the Code of Civil Procedure in the circumstances is condoned and by consent of parties the application under Section 115, Civil Procedure Code is taken up for hearing.

2. This Rule has been directed against an order (No. 30) dated 7-6-1974 whereby plaintiff's application under Section 17 (3) of the West Bengal Premises Tenancy Act was rejected.

3. The facts relevant are in short as follows. The plaintiff as landlord instituted a suit for recovery of possession of the suit premises on eviction of the defendant therefrom which the defendant held as a monthly tenant. The summons in the suit was sought to be served in the usual manner but the process server submitted a report to the effect that on August 22, 1972 he went to the suit premises and tendered the summons to the opposite party. As the opposite party refused to accept the summons by acknowledging receipt thereof the process server served the same by hanging on the outer door of the suit premises. Thereafter by order dated 14-9-72 the learned Munsif recorded that service of summons was not satisfactory and on the petition of the plaintiff-petitioner the summons was directed to be served by registered post with acknowledgment due. The opposite party, however, refused to accept the summons sent under registered post and it came back with the endorsement of the postman as 'refused' bearing date 29-9-1972.

The petitioner's case is that the opposite party did not deposit the rent in court within 30 days from the date of the refusal. On that basis he filed the application under Section 17 (3) for striking outdefence against delivery of possession. This application was rejected by the impugned order.

4. The learned Munsif was of opinion that the service of summons by registered post is available under Rule 20-A of Order V of the Code only if the summons is returned unserved. In the instant case it was held that the service was not satisfactory and thereafter the service by registered post was ordered. The learned Munsif in the impugned order was of opinion that it could not be said that the summons was returned unserved as contemplated under Rule 20-A and accordingly the Court could not direct service by registered post. The precondition not being present in the case, the service by registered post could not be taken as authorised by the Code for service of summons even if there was a refusal of the registered cover by the defendant-opposite party. In this view the learned Munsif did not decide as to whether there was refusal of the summons sent to him by registered post. Accordingly it was held that it could not be said that there was any service of summons contemplated under the Code to which the provisions of Section 17 (1) would be applicable. The learned Munsif took the appearance of the defendant on his own as the date of service of summons on him. On this basis the application under Section 17 (3) was rejected.

5. Mr. Tapas Chandra Roy appearing for the plaintiff petitioner has submitted that the learned Munsif's interpretation of the relevant rule was wrong inasmuch as second service by registered post was ordered because the first service was not satisfactory thus there was no service according to law. The Court accordingly was entitled to direct service by registered post under the rule as the summons was in effect returned unserved. The moot point for consideration, according to Mr. Roy, was whether summons under registered post was in fact refused by the defendant. The success of the application under Section 17 (3) would depend on this finding as refusal would be good service in law. Mr. Sen appearing for the opposite party has disputed the above contention and submitted that the learned Munsif was correct in his interpretation of Rule 20-A of Order V and the impugned order was an order in accordance with law.

6. Under Section 27 of the Civil Procedure Code summons to be issued to the defendant is to be served in mannerprescribed. The manner of service as we have seen, is laid down in various rules under Order V. Rule 20-A is as follows:

'(1) Where for any reason whatsoever, the summons is returned unserved, the Court may, either in lieu of, or in addition to the manner provided for service of summons in the foregoing rules, direct the summons to be served by registered post addressed to the defendant or his agent empowered to accept service at the place where the defendant or his agent ordinarily resides or carries on business or personally works for gain.'

7. It appears that the provisions of Rule 20-A (1) would be available only when the summons is returned unserved. A defective or unsatisfactory service means service which is defective or unacceptable for some reason or other and it does not, in my opinion, amount to or mean return of summons unserved as contemplated under the rule. Accordingly for application of Rule 20-A there must be return of summons unserved to the Court which is not the case here.

8. As has been held in Dhal Singh v. Anand Rao, : AIR1960MP378 the Court is empowered to issue summons to be served by registered post when summons issued to be served by ordinary process is returned unserved. This Rule, it wag held, does not enable the court to issue summons by registered post at the first instance nor does it enable the court to do so before summons by ordinary process is returned unserved. The same view was taken in Sm. Jaswant v. Ravinder Singh, 1965 Punj LR Notes on Case No. 135 and it was held that the trial court has no power to have recourse to substituted method of service under Rule 20-A (1) when the summons as a matter of fact was never returned unserved to the court. The postal peon's report on the registered cover, sent to the defendant under that rule, it was further observed, is not service in law upon the defendant.

9. The return of the summons. unserved is thus a condition precedent to enable the court to cause service of summons by registered post under Rule 20-A (1). Accordingly, in agreement with the teamed Munsif, I am of opinion that an order for service by registered post will not be in accordance with law unless the summons is returned to court unserved. It is not necessary to consider whether the summons was served by re-gistered post in pursuance of the order of court purported to be under Rule 20-A (1) which we have found to be untenable in law and the material date of service of summons with reference to Section 17 (1) of the West Bengal Premises Tenancy Act, 1956 would be in the attending circumstances the date of appearance of the defendant on his own in the suit.

10. The rule accordingly fails and is discharged. There will be no order for costs in the circumstances.


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