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Parimal Pal Choudhury Vs. Kalidas Banerjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Order No. 2968 of 1980
Judge
Reported inAIR1981Cal358
ActsCode of Civil Procedure (CPC) , 1908 - Order 5, Rules 17, 19 and 20A
AppellantParimal Pal Choudhury
RespondentKalidas Banerjee
Appellant AdvocateA.C. Bagchi, Adv.
Respondent AdvocateAmal Kumar Ghoshal and ;Sitaram Bhattacharya, Advs.
DispositionRevision allowed
Cases ReferredGorilla Venkata Pitohayya v. Sowdagar Mohamtnad Abdul Kareembeg Sahib
Excerpt:
- .....no. 215 of 1976. on sep. 13, 1976, the day fixed for appearance of the defendant in that suit, the learned munsif passed the following order :'the plaintiff fiies bazira. it appears the summons returned after service but the service is not satisfactory. plaintiff to take steps by 9-11-76.'2. on november 9, 1976 the plaintiff filed a petition praying for service of summons upon the defendant by registered post with acknowledgement due and the said prayer was allowed. the registered cover containing the summons came back with the endorsement 'refused' and as such, the learned munsif by his order no. 6, dated january 10, 1977 fixed april 7, 1977 as the dale for ex parte hearing of the suit as no appearance was made by the defendant on the said date. in terms of the said order the suit was.....
Judgment:
ORDER

Monoj Kumar Mukherjee, J.

1. The opposite party instituted a suit in the 4th Court of the Munsif at Alipore for eviction of the petitioner and the said suit was registered as Title Suit No. 215 of 1976. On Sep. 13, 1976, the day fixed for appearance of the defendant in that suit, the learned Munsif passed the following order :

'The plaintiff fiies bazira. It appears the summons returned after service but the service is not satisfactory. Plaintiff to take steps by 9-11-76.'

2. On November 9, 1976 the plaintiff filed a petition praying for service of summons upon the defendant by registered post with acknowledgement due and the said prayer was allowed. The registered cover containing the summons came back with the endorsement 'refused' and as such, the learned Munsif by his Order No. 6, dated January 10, 1977 fixed April 7, 1977 as the dale for ex parte hearing of the suit as no appearance was made by the defendant on the said date. In terms of the said order the suit was taken up for ex parte hearing and decreed. Thereafter on Jan. 13, 1979 the petitioner filed an application for setting aside the said decree under Order 9, Rule 13 of the Code of Civil Procedure, hereinafter referred to as the Code, read with Section 151 of the Code. In that application the petitioner contended, inter alia, that he was not served with any summons of the suit, nor did he refuse to receive the summons when allegedly tendered by the peon and that he came to know of the institution of the said suit by the opposite party only on Jan. 6, 1979 when a process server of the Court along with others went to deliver khas possession of the suit premises. The teamed Munsif took the view that the refusal of summons amounted to service of proper summons and that the petitioner failed to make out surticient ground to set aside the ex parte decree. Accordingly, he rejected the application tiled by the petitioner under Order 9, Rule 13 of the Code. Against such rejection, the petitioner preferred an appeal which was dismissed by the learned Subordinate Judge, 5th Court, Alipore. Thereafter, the petitioner moved this Court by filing this revisional application, which has been heard as a contested one.

3. Mr. Bagchi, the learned Advocate appearing for the petitioner, firstly contended that the learned Munsif erred in law in directing service of summons by registered post under Order 5, Rule 20A of the Code as the pre-requisites for taking recourse to the said provision was not present. According to Mr. Bagchi, service of summons by registered post under the above Rule could be ordered only in a case where the summons was returned unserved and not in a case, as in the present one, where the service of summons through process server was found by the Court to be unsatisfactory. In support of his conleniion, Mr. Bagchi relied upon a judgment of this Court in the case of T. C. Banerjee v. B. V. S. Rao, reported in : AIR1976Cal425 and also upon an unreported judgment of this Court in the case of Sambhu Nath De V. Kunailal Banerjee (S. A. 396 of 1977 dated February 29, 1980).

4. Mr. Ghoshal, the learned Advocate appearing for the opposite party, on the other hand, relying upon the judgment of the Madras High Court in the case of Gorilla Venkata Pitohayya v. Sowdagar Mohamtnad Abdul Kareembeg Sahib reported in 23 Ind Cas 14 : (AIR 1914 Mad 216), contended that in view of the provisions of Order 5, Rule 19 of the Code, the Court may direct service in such manner as it may think fit if it was satisfied that the summons was returned under Rule 17 of Order 5 of the Code. According to Mr, Ghoshal, the petitioner refused to accept the summons, and such refusal comes within the purvitw of Order 5. Rule 17 entitling the Court to take recourse to Order 5, Rule 19 and ensure service by registered post.

5. I am however, unable to acwpt thc contention of Mr. Ghoshal in view of the clear language of the provisions of Order 5 and the decisions of our High Court referred to above. There is no dispute that the provision of Order 5. Rule 19 presupposes return of the summons under Rule 17 thereof. Rule 17 in its turn speaks of refusal to accept service of summons by the defendant or of cases where the defendant cannot be found. It is only in those two circumstances that the question of discretion of the Court to take recourse to any mode of service under Order 5. Rule 19 comes in. In the infant case, the Order No. 3 dated Sep. 13, 1976, as quoted earlier, clearly shows that it was not a case of non-service of summons or refusal on the part of the defendant to accept the summons, but, according to the learned Munsif, unsatisfactory service of summons. In other words, it was not a case of refusal or non-service of summons in which case alone the provisions of Order 5, Rule 20A would have been available to the learned Munsif. The identical view was taken by this Court in the two cases referred to above. In the former, this Court expressly stated that the return of the summons unserved was condition precedent to enable the Court to cause service of summons by registered post under Rule 20A (1) and unless such was the case, the order for service by registered post was not in accordance with law. In the latter judgment, quoted above, this Court approved of the earlier judgment and held that unless the summons came back unserved, there was no scope for application of Rule 20A.

6. For the foregoing discussions, I must, therefore, hold that there was no proper service of summons upon the defendant-petitioner in accordance with law. From the judgment of the Appellate Court I find that it also considered the question whether the petitioner had knowledge of the suit and answered the said question against the petitioner. The moot question before the Court below was whether there was a proper service of summons upon the petitioner, and in that context, the knowledge of the suit was immaterial. The petitioner has a legal right to be served with a proper summons, and it is immaterial in that context whether he had knowledge of the suit from other sources. So long there was no proper service of summons in accordance with law, he may legitimately refuse to enter appearance notwithstanding the fact that he might have knowledge from some other source about the suit.

7. In view of the discussions, as above, I allow this application and set aside the impugned orders of the learned Courts below. The learned Munsif will now allow the application of the petitioner under Order 9, Rule 13 and restore the suit in its original file and number for disposal in accordance with law.

There will be no order as to costs.


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