N. HARIHARAN v. KERALA STATE — 1967 DIGILAW 39 (KER)

Judgment :- 1. The civil revision petition arises out of an application by the petitioner (the defendant) for setting aside an ex parte decree under O.IX. R.13 of the Code of Civil Procedure. Both the lower courts have dismissed the application. 2. The first complaint of the counsel of the petitioner is that the lower courts erred in holding that there was due service of summons. The first ground is that the petitioner's name is N. Hariharan, whereas it was shown in the summons sent by registered post as H. Hariharan; and his address was given as Pankajam Motors Ltd., Alwaye instead of the correct address, Pankajam Talkies. Alwaye. The summons was returned with the endorsement by the postman that there was no such institution as Pankajam Motors Ltd. in Alwaye and that there was no such person as H. Hariharan. Thereafter, the summons was published in the 'Express', a Malayam daily, having circulation in the locality, after which the ex parte decree was passed. The petitioner is examined as pw.1; and he says that if letters were addressed to him as N. Hariharan, Pankajam Motors Ltd., they should reach him. This shows that there was nothing wrong in the address, which again is fortified by Ex. D-1, a postal acknowledgment for a registered letter sent by the Executive Engineer, Electrical Distribution Division, Alwaye addressed to the petitioner as N. Hariharan, Pankajam Motors Alwaye. Ex. D-1 shows that the petitioner received the registered letter; and he has stated in his evidence that the signature therein appears to be his. The further question is whether the wrong name given on the envelope in which the summons was sent as H. Hariharan instead of N. Hariharan was sufficient to hold that there was no due service. The two letters, N and H, resemble each other so closely that if an envelope was addressed to a person as H. Hariharan instead of N. Hariharan and if the same was taken to him, it should have been received by the addressee. Therefore, for this reason it cannot be said that the service was not due service. 3. The next complaint on this aspect of the case relates to the effect of the endorsement of the postman. Therefore, for this reason it cannot be said that the service was not due service. 3. The next complaint on this aspect of the case relates to the effect of the endorsement of the postman. I may straightaway observe that the endorsement of the postman was not that the addressee refused to receive the envelope, whereas the endorsement was that there was no such institution as Pankajam Motors and no person as H. Hariharan. I may however add that if this return is to be treated as one of refusal, then R.20A(2) of Or. V of our Code of Civil Procedure must apply; and the court has to presume that there was prima facie proof of service. At any rate, matters did not stop with the first summons in this case, because substituted service was also effected by publication in the 'Express'. R.20(2) of Or. V says that such substituted service shall have the same effect as personal service. On this basis, since there was substituted service also, it has to be held that the service of summons was proper. 4. Under Art.164 of the Limitation Act of 1908 the time for filing an application by the defendant to have an ex parte decree set aside is 30 days; and the time starts from the date of the decree or, where the summons was not duly served, from the date when the defendant has knowledge of the decree. Since I have held that there was due service in this case, the application for setting aside the ex parte decree is barred, as the decree was passed on 30th June 1960 and the application to set aside the same was filed on 18th May 1964. 5. I may point out that the counsel of the petitioner has argued that the first summons should have been served through an officer of the court and not by registered post. This.argument, I do not think, is justified, because Or. V. R.9(3) was incorporated in our Code in June 1959, under which service of summons by post to a defendant living outside the jurisdiction of the court but anywhere in India is allowed. I may make the position clear. Under Or. This.argument, I do not think, is justified, because Or. V. R.9(3) was incorporated in our Code in June 1959, under which service of summons by post to a defendant living outside the jurisdiction of the court but anywhere in India is allowed. I may make the position clear. Under Or. V, R.9(1), if the defendant lives within the jurisdiction of the court, the first summons has to be served through an officer of court; and if the defendant lives outside the jurisdiction of the court but within India, under sub-rule (3) service of first summons may be effected through registered post. Since the present suit was filed in the court at Trivandrum in October 1959 and since the petitioner lived outside its jurisdiction (at Alwaye), this provision applies to the case. 6. Another contention urged by the counsel (which may not be strictly necessary in this case) relates to the effect of the endorsement of the postman that the summons was refused. Our Code provides in Or. V, R.20A(2) that when a postman sends back a registered envelope with an endorsement that it has been refused by the addressee, it may be presumed to be prima facie proof of service. That provision was incorporated in our Code in 1956; and sub-rule (3) of R.9 of Or. V was incorporated in 1959. In my opinion, the effect of a return of summons by the postman under R.9(3) with an endorsement that it was refused by the addressee must also be the same, viz., that it is prima facie proof of service. 7. In this case there were other proceedings as well, which will impute the petitioner with knowledge of the decree. The decree contained the name of the petitioner as H. Hariharan. Subsequently, the decree was sought to be amended by correcting the name into N. Hariharan. For that purpose also notice was issued to the petitioner addressed as N. Hariharan, Pankajam Motors Ltd, Alwaye. That was returned with an endorsement on the envelope dated 30th March 1963 by the postman that the addressee refused to accept. The postal acknowledgment which had also to be signed and returned by the petitioner contained the number of the suit (O. S. No. 749 of 1959). The question is as to what is the effect of such refusal. 8. In this connection the counsel of the petitioner has drawn my attention to two decisions. The postal acknowledgment which had also to be signed and returned by the petitioner contained the number of the suit (O. S. No. 749 of 1959). The question is as to what is the effect of such refusal. 8. In this connection the counsel of the petitioner has drawn my attention to two decisions. One of them is Appabhai Motibhai v. Laxmichand (AIR. 1954 Bora.159), wherein Chagla C. J. has said that the mere endorsement by the postman of refusal to accept would not constitute proper service. The Government Pleader brings to my notice the relevant provision of the Civil Procedure Code of Bombay, wherein an endorsement by a postal employee that the defendant or his agent refused delivery is not treated as prima facie proof of service. In our Code, as already stated, under R.20A (2) such refusal has to be deemed to be prima facie proper service. Secondly, in the Bombay case there was no substituted service; whereas, in the case before me, substituted service by publication in a newspaper was also effected, so that there was due service of summons in this case. 9. The next decision cited before me is Pichai Ammal v. Vellayya Thevar alias Ochu Thevar (AIR. 1963 Mad. 198). In that case also there was no substituted service, which makes that decision different from the case before me. Moreover, what emerges from the reasoning in that decision is this. The learned judges say that if there was refusal of an envelope containing a communication, the person who refuses must be presumed to have knowledge of the contents of the envelope. Their Lordships proceed on that basis and reason that in the case before them the defendant should be deemed to have knowledge of the date of hearing of the suit mentioned in the summons. But, they reason further, the suit need not have been decreed on the first hearing itself, so that the knowledge of the date of first hearing was not knowledge of the date of decree. If that reasoning is applied to the present case, the result will be against the petitioner. In the case of the summons in the suit, since there was no endorsement of refusal, I do not think anything can be presumed against the petitioner. If that reasoning is applied to the present case, the result will be against the petitioner. In the case of the summons in the suit, since there was no endorsement of refusal, I do not think anything can be presumed against the petitioner. Even if there was refusal of the summons, as held by the Madras ruling, the knowledge that can be imputed cannot be of the date of decree, but can only be of the date of first hearing of the suit. But, the subsequent notice to correct the decree was refused; and the effect of the refusal is that the court should presume that the petitioner knew the contents of the envelope. That means that the petitioner knew the date of the decree which was sought to be amended, for which purpose the notice was issued to him. It follows that the conclusion of the lower courts that the petitioner must have known about the date of decree at least on the date of refusal of the notice to amend the decree is correct. Even looking at the question in this way the petitioner's application is barred, because the refusal was on 30th March 1963 and the application to set aside the decree was on 18th May 1964. 10. The only further point to be mentioned is that at some stage of the argument it has been suggested by the counsel of the petitioner that the procedure prescribed for serving summons in a suit will not apply to the issue of notice in an execution petition or in an application for amending the decree. This is incorrect, for O. XLVIII R.2 of the Code lays down that all orders, notices and other documents to be served on any person shall be served in the manner prescribed for the service of summons. 11. It is apparent from the discussion hereinbefore that the conclusion of the lower courts is correct. The same is confirmed; and the civil revision petition is dismissed. However, I pass no order regarding costs. Dismissed.