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1981 DIGILAW 361 (ALL)

Gori Dulhan v. Mahant Janki Ballabh Das

1981-03-11

R.S.VERMA

body1981
JUDGMENT R.S. Verma, Member- In this revision, an interpretation of Order 7 Rules 20, 21-A and 21 C.P.C. and Article 123 Limitation Act is involved. 2. A case under Section 229-B, U.P.Z.A. & L.R. Act had been filed by Mahant Janki Ballabh Das against Gaon Sabha and two others. This suit was decreed ex parte on 11-7-1972. Defendant no. 3, Smt. Gori Dulhan (revisionist) moved an application no 20-7-1973 for setting aside the ex parte decree. On 27.8.1973, Kumari Uma Verma, learned S.D.O., Moth, district Jhansi, dismissed this application of Smt. Gori Dulhan. Aggrieved by this order, the defendant no. 3, Smt. Gori Dulhan filed an appeal in the court of the Commissioner, Jhansi Division. The appeal was heard by Shri S.M. Ibrahim, learned Commissioner, and he on 6-11-1973, dismissed the appeal. 3. The application of Smt. Gori Dulhan was obviously time-barred. In that case, summons was issued through registered post, which was returned for want of proper address of the defendant. Later on, fresh summons was issued on the correct address of defendant no. 8, which was refused by her and so, the case proceeded ex-parte. The defendant Smt. Gori Dulhan had alleged that she did not receive the summons nor she refused to take it and that she came to know about the case only through the khatauni extract given by the Lekhpal on 18-7-1973. The learned Commissioner found that this allegation of Smt. Gori Dulhan was incorrect and that the extract of khatauni had been issued by the lekhpal not on 18-7-1973 but on 1.7.1973. The learned Commissioner observed that Smt. Gori Dulhan could not explain the delay of 17 days and that under Section 5, Limitation Act, day to day explanation of the delay was necessary. 4. The order of the learned trial court and that of the learned Commissioner had been challenged before me. The only point argued in this court is that Article 128 (Explanation) Indian Limitation Act lays down that "For the purposes of setting aside a decree passed ex parte or for rehearing an appeal decreed or heard ex parte, substituted service under Rule 20 of Order V Code of Civil Procedure, 1908 shall not be deemed to be due service." On the basis of this Article, it has been argued that as there was only substituted service on defendant no. 3 Smt. Gori Dulhan revisionists it will not be considered as due Service as far as Article 123, Limitation Act, is concerned, and, therefore, the period of limitation will be 30 days not from the date of service or ex parte decree, but from the date of knowledge. It was argued that the revisionist, Smt. Gori Dulhan got knowledge of the decree only on 18-7-1973 when she obtained an extract of khatauni from the Lekhpal and, therefore, the period of Limitation will begin from this date and will continue upto 18-8-1973. He has cited Board's order dated 25-2-1976 passed in revision no. 77 of 1973-74 Jhansi in the case of Shri Mandir Hanumanji Maharaj v. Mandir Avadhnath Ji Maharaj village Charra Imli, Pergana Moth, district Jhansi passed by Shri H.N. Agarwal, learned Judicial Member. This is an un-reported case, Shri H.N. Agarwal, learned Judicial Member, held that "where substituted service is made by registered post and there is an endorsement of the postman that the addressee had refused to take the registered envelope, it will not be deemed to be due service as far as Article 123, Limitation Act, is concerned. I have already mentioned that Explanation to Article 123, Limitation Act lays down that substituted Service under Rule 20. Order V, C.P.C. shall not be deemed to be due service. Sub-rule 2 of Rule 20 Order 5 C.P.C. mentions substituted service by affixation. Another manner of substituted service has been mentioned advertisement in a newspaper. It also lays down that the court shall order the summons to be served in such other manner as the court thinks fit. In this case, substituted service was not made by affixation or by publication in a daily newspaper, but was made by sending the summons by registered post. It also lays down that the court shall order the summons to be served in such other manner as the court thinks fit. In this case, substituted service was not made by affixation or by publication in a daily newspaper, but was made by sending the summons by registered post. Rule 19-A of Order V, C.P.C. also provides for issue of summons by post in addition to personal service and sub-rule (2) of this rule lays down that where the defendant or his agent had refused to take delivery of the postal article containing the summons when tendered to him the court issuing the summons, shall declare that the summons had been duly serviced on the defendant." In Rule 21 of Order V, C.P.C. the Allahabad High Court has made an amendment to the effect that in lieu of or in addition to, the procedure indicated in sub-rule (1) of Rule 21, such summons may also be served by sending it by registered post addressed to the defendant at the place where ordinarily he resides or carries on business or works for gain. Unless the cover is returned undelivered by the post office on account of want of proper address or other similar reason, the summons may be deemed to have been delivered to the addressee at the time when it should have reached him in the ordinary course." These Rules 19-A, of Order V, C.P.C. show that summons may also be sent to a defendant by a registered post. Before C.P.C. (Amendment Act) 1976, there was Rule 20-A which was applicable at the time when the trial court had sent the summon by post. That laid down. Before C.P.C. (Amendment Act) 1976, there was Rule 20-A which was applicable at the time when the trial court had sent the summon by post. That laid down. "Where for any reason whatsover, 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." Sub-Rule (2) of rule of Rule 20-A, Order V, C.P.C. further laid down that an acknowledged purporting to be signed by the defendant or the agent or an endorsement by a postal employee that the defendant or the agent refused to take delivery may be deemed by the court issuing the summons to be prima facie proof of service. 5. In the instant, case it appears and there is no reason to think otherwise, that summons was sent to defendant no. 3 Smt. Gori Dulhan under Rule 20-A of order VCPC and in accordance with Sub-rule (2) of Rule 20-A, the service of summons was presumed to be due service on seeing the endorsement of the postal employee that the defendant had refused to take delivery of that summons. Obviously, this substituted service was made in accordance with Rule 20-A and not Rule 20 of Order V, C.P.C. so, the explanation to Article 123, Limitation Act, does not apply because that mentions substituted service under Rule 20 of Order V, C.P.C. and it does not mention Rule 20-A of Order V, C.P.C. 6. The decision of Sri H.N. Agarwal, learned Judicial Member, is not applicable to this case because he did not take into consideration the fact that service was made in accordance with Rule 20-A of Order V, C.P.C. and not in accordance with Rule 20-A of Order V, C.P.C. The benefit of Explanation of Article 123, Limitation Act, can be taken only if the substituted service is made under Rule 20 of Order V, C.P.C. and not under any other Rule of that order. 7. 7. The learned counsel for the revisionist has argued before me that Explanation to Article 123, Limitation Act, refers to each modes of substituted service prescribed by Rules 19-A, 20-A and 21 of Order V, C.P.C., whichever is applicable. I fail to agree with this view. Article 123 and its Explanation does not refer to Rules 19-A, 20-A and 21 of Order V, C.P.C. and hence the benefit of this Article cannot be given in a case where service is affective under any of these Rules. Article 123, Limitation Act, mentions only Rules 20 of Order V, C.P.C. and hence the benefit of limitation will be given only if substituted service is made under this Rule and not otherwise. 8 Hence, I am of the view that in this case service of summons was made by the registered post in accordance with Rule 20-A Order V, Code of Civil Procedure and not under Rule 20 of Order V, C.P.C. and hence the period of limitation will begin not from the date of knowledge of the decree but from the date of the decree. The decree was passed on 11-7-1972 and the application for setting aside the decree was given on 20-7-1973 and it was clearly time-barred. 9. There is no force in this revision petition, which is dismissed. Costs on easy.