Judgment 1. On an application by the sole respondent under S.276 of the Succession Act for grant of a probate in respect of the estate of the deceased Smt. Munga Devi, on the alleged will dt. 3-3-1979, Probate Case No. 194 of 1979 was registered. This Probate Case No. 194 of 1979 was allowed on 27-1-1981 and an ex parte order was passed. Thereupon the appellants filed an application under O.9, R.13 of the Civil P.C. (hereinafter referred to as the Code) for setting aside the ex parte order passed in the aforesaid probate case. This was registered as Misc. Case No. 39 of 1981. The Court below by the impugned order dt. 27-1-81 dismissed the said miscellaneous case holding that the appellants have not been able to prove that the notices were not duly served upon them or that they were prevented by any sufficient cause for appearing in the case when the case was taken up for ex parte hearing. Hence the present appeal by the appellants. 2. It is well settled that the provisions of O.9 R.13 of the Code are applicable to probate proceedings and the learned counsel for the respondent has not contested this well established principle of law. 3. It is pertinent to mention here that appellant No. 1 (Akhouri Raghubir Lal) died during the pendency of the appeal and his heir and legal representative has been substituted and hereafter when I would refer to appellant No. 1, it would mean original appellant No. 1 (Akhouri Raghubir Lal). 4. The learned counsel appearing for the appellants has advanced three submissions. 4. The learned counsel appearing for the appellants has advanced three submissions. Firstly, that in order to enable a Court to make a declaration of service under O.5, R.19A, summons through ordinary process and summons through registered post must be sent simultaneously, if not so sent, the Court cannot make a declaration of due service and if Court does make a good declaration of due service that is an illegality of such a nature which should be sufficient for setting aside an ex parte order/decree; secondly, that if the Court makes a declaration under an erroneous impression of expiry of thirty days from the date of issuance of summons through registered post, even then the declaration is of no legal effect and cannot constitute due service in law; and, lastly, that the impugned order dismissing the application under O.9, R.13 of the Code being on a ground not stated by the appellant 2, is an erroneous order in the eye of law and needs to be interfered with. 5. In order to appreciate the aforesaid submissions advanced by the learned counsel for the appellants, it is essential to state a few facts. 6. The sole respondent, on the basis of the alleged Will dt. 3-3-79 said to have been executed by the deceased Smt. Munga Devi, claims to have been appointed as the sole executor of the said Will. The names of these appellants were given by the appellants as the only near relatives of the executrix (Munga Devi) in the aforesaid application for the grant of probate. This application for grant of probate was filed on 31-10-79. On 3-4-1980 notices (general, special and show-cause) were ordered to be issued in the case. On 15-5-1980, order for issuance of fresh notice, after removal of defects, was passed. Thereafter, it seems, the notice was received by the son of appellant 1 on behalf of appellant 1 on 4-6-1980. This son of appellant 1 (when I say appellant 1, I mean original appellant 1) has now been substituted as one of the heirs of original appellant 1. So far as the notice on appellant 2 is concerned, the notice was affixed on refusal by appellant 2. The general notice and the notice of show cause were found to have been properly served, but the special notice was not found sufficient and the Court ordered to take fresh steps by registered post. So far as the notice on appellant 2 is concerned, the notice was affixed on refusal by appellant 2. The general notice and the notice of show cause were found to have been properly served, but the special notice was not found sufficient and the Court ordered to take fresh steps by registered post. On 28-7-1980, order for issuance of notices by registered post on both the appellants was passed. This notice under registered post seems to have been served upon appellant 1 and by order dt. 26-9-1980, the service of notice on appellant 1 was found sufficiently valid; whereas, the registered notice sent on appellant 2 returned unserved as he had left for Patna. Thereupon on 3-10-1980, the Court ordered for taking steps for fresh service of notice by registered post on appellant 2 and the Court fixed 21-11-1980 for hearing. Though the steps for fresh service by registered post on appellant 2 were taken by the respondent (of the instant appeal) on 3-10-1980 itself yet the notice was never issued till 11-11-1980. On 11-11-1980 the notice under registered post for service on appellant 2 was actually issued. The acknowledgment due receipt having not been received till 21-11-1980 (the date fixed for hearing) the Court fixed 4-12-1980 as the next date for hearing. On 4-12-1980, the Court passed order which needs to be quoted - "Avedak Ki Or Se Upasthiti Di Jati Hai. Registry Notice Ka Tamila Abhi Tak Nahin Aya Hai. Ek Mahina Se Upar Ho Gaya. Adhivakta Ko Suna. Vipakshi Yadubir Lal Par Tamila Prapt Mana Gaya. 18-12-1980 Ko Sunbahi Ke Liye Rakhen (Lekhapit)". Thereafter, the hearing of the case was adjourned from one day to another from 18-12-1980 up to 9-1-1981 and on 9-1-1981, the Court fixed 22-1-1981 for hearing. On 22-1-1981 the applicant in the probate case (i.e. the sole respondent in the instant appeal) examined two witnesses and thereafter the Court heard the argument as advanced by the applicant in the probate case and fixed 27-1-1981 for judgment. 7. It is apparent from the record that the same day at about 5 P.M. a petition was filed on behalf of appellant-1 to the effect that he be granted some time to file the objection. The Court ordered that probate order would be passed on the application. 7. It is apparent from the record that the same day at about 5 P.M. a petition was filed on behalf of appellant-1 to the effect that he be granted some time to file the objection. The Court ordered that probate order would be passed on the application. Thereafter on 23-1-1981 a similar application was again filed by appellant No. 1 and prayer for time to file objection was made. Thereafter, on 27-1-1981 the Court rejected the aforesaid two applications dt. 22-1-81 and 23-1-1981 filed by appellant 1. The Court passed ex parte order in the probate case on 27-1-1981 and while disposing of the probate case by its order dated 27-1-1981, the court mentioned the reasons for rejecting the aforesaid two applications filed by appellant 1, in other words, instead of passing a separate order stating reasons for rejecting the two aforesaid applications filed by appellant 1, the Court passed a composite order disposing of the probate case itself as well as disposing of the aforesaid two applications of appellant 1. 8. As I have already stated above, it was only thereafter that the application under O.9, R.13 was filed by the appellants for setting aside the ex parte order in the aforesaid probate case. 9. Thus, from the facts, as mentioned above, it would appear that though the steps for fresh service of notice by registered post on appellant No. 2 were taken on 3-10-1980 itself, in fact, the registered notice was actually issued on 11-11-1980. If so, on 4-12-1980 thirty days had not expired and on 4-12-1980 the Court under a misconception found in its order (as quoted fully above) that one month had passed and a notice was treated to have been served on appellant 2. At the risk of repetition, it is pertinent to state that though, as it appears from the record, the applicant in the probate case had examined his witnesses on 22-1-1981 and the argument also was heard but the judgment was not delivered and the court had fixed 27-1-1981 for judgment, yet appellant 1, the same day at about 5 P.M., did file an application praying for time to file objection and repeated his prayer by another application having been filed on the next day, i.e. on 23-1-1981. As the judgment was reserved the argument was closed on behalf of the applicant in the probate case, but judgment was not delivered. As the judgment was reserved the argument was closed on behalf of the applicant in the probate case, but judgment was not delivered. The Court, on the application filed by appellant 1, the same day at about 5 P.M. should have passed its order one way or the other either the same day or the next day when the prayer was repeated by appellant 1; but for one reason or the other the Court did not pass any order on those two applications and the order of rejection of the applications was inserted in the main order (dt. 27-1-1981) disposing of the probate case. If the Court would have passed order before the judgment in the probate case against appellant 1, he may have had one remedy or the other. 10. Thus, significant question involved in the present appeal is whether the order dt. 4-12-1980 is an order passed under O.5 R.19A, sub-cl.(2) and the proviso to sub-clause (2) or it was just an order under O.5, R.10 of the Code (Patna Amendment) or O.5, R.20A. I have purposely mentioned O.5, R.10 of the Code (Patna Amendment) and O.5 R.20A as the learned counsel appearing for the respondent in his reply has submitted that the order dt. 4-12-1980 is not an order passed under O.5 R.19A (2) read with its proviso. 11. It is pertinent to quote R.19A : R.19A -"Simultaneous issue of summons for service by post in addition to personal service - The Court shall in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rr.9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain : Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where in the circumstances of the case, the Court considers it unnecessary. (2) When an acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that 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 served on the defendant: Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons." This R.19A of O.5 was inserted by the Civil P.C. Amendment Act, 1976 (Amendment Act No. 104 of 1976). 12 The learned counsel appearing for the appellants, as already stated above, has submitted that while issuing the notice by registered post, it was incumbent upon the Court to issue summons through ordinary process as well simultaneously with the issuance of summons through the registered post and as it was not done so the Court could not make a declaration of the service of notice as required under Cl.(2) of R.19A. The learned counsel for the appellants has also argued that as thirty days, in fact, had not expired from the date of issuance of the notice by registered post, i.e. from 11-11-1980, the Court erroneously, in law, made a declaration of due service on appellant 2. The learned counsel submitted that if this declaration under a misconception that the notice was issued on 4-10-1980 was factually wrong, no declaration of due service could be made by the Court and if so there was no service much less due service upon appellant 2 and hence the probate case was not ready for hearing and could not be heard unless there was due notice served upon the appellant 2. 13. The learned counsel appearing for the appellants has relied upon the case of Union of India V/s. Sri Laxmi Oil Mills reported in 1984 BBCJ (HC) 137 : ( AIR 1984 Pat 252 ) in support of his submissions. 13. The learned counsel appearing for the appellants has relied upon the case of Union of India V/s. Sri Laxmi Oil Mills reported in 1984 BBCJ (HC) 137 : ( AIR 1984 Pat 252 ) in support of his submissions. It is well settled that the mode of service by a registered post is only in addition to the service of summons in the ordinary course. The Courts are, therefore, required to simultaneously send notices in the ordinary course and by the registered post. It is also well settled that the issuance of summons by registered post in absence of the summons in the ordinary course is wrong. O.5, R.19A(2) provides a procedure that if a postal notice is sent to a defendant in the suit and the postal acknowledgment is received with an endorsement purported to have made by the postal employee that the defendant or his agent refused to take delivery of the notice, the Court shall declare by its order that the summons had been duly served on the defendant, when the acknowledgment is not received back within thirty days from the date of issue of summons, the Court may make a declaration to the effect that the summons were duly served notwithstanding the fact that the acknowledgment having been lost or mislaid or for any other reason has not been received by the Court. This is a condition precedent for the Court to proceed further with the hearing of the suit. 14. The learned counsel appearing for the appellants has contended, as stated above, that the declaration made by the Court with regard to the due service in the instant case was under a misconception on a factual mistake committed by the Court that the notice was issued on 4-10-1980. As I have already stated above that when the acknowledgment is not received back within thirty days from the date of issue of summons, the court may make a declaration to the effect that summonses were duly served. The learned counsel appearing for the respondents very fairly conceded that, in the instant case, the summons under registered post was factually sent on 11-11-1980, as it appears from the postal receipt No. 5059 for accepting the registered cover with A/D at page 25 of the lower court record. The learned counsel appearing for the respondents very fairly conceded that, in the instant case, the summons under registered post was factually sent on 11-11-1980, as it appears from the postal receipt No. 5059 for accepting the registered cover with A/D at page 25 of the lower court record. This being the factual position, the Court below could not make a declaration of due service on 4-12-1980, as thirty days had not expired since the issuance of the summons under registered cover. 15. However, the learned counsel appearing for the respondent has submitted that the case of Union of India V/s. Sri Laxmi Oil Mills, ( AIR 1984 Pat 252 ) (supra) is distinguishable and cannot be relied upon by the learned counsel appearing for the appellants as that was a case in which there was complete absence of issuance of summons for service in the ordinary course as provided in Rr.9 to 19 of O.5 of the Code. The learned counsel for the respondents submitted that it was in that background that it was held that the court was required to send notices simultaneously in the ordinary course and also by the registered post. The learned counsel for the respondent submitted that so far as appellant 1 was concerned, notice was duly served upon him and the only ground upon which he could assail the ex parte order in the probate case was - if he proves to the satisfaction of the court that he was prevented by the sufficient cause. The learned counsel further submitted that in the case of appellant 1, even O.9 R.7 was not attracted as on 22nd Jan., 1981, the hearing was concluded and the appellant 1 never appeared in the case at or before such hearing. He further submitted that the appellant 1 had the full knowledge about the probate case, and even if there was any irregularity in the service of summons, the ex parte order could not be set aside under the second proviso to O.9, R.13. 16. So far as appellant 2 was concerned, the learned counsel for the respondent submitted that he (appellant 2) also could not, on the facts of the present case, claim that there was no due service on him. 16. So far as appellant 2 was concerned, the learned counsel for the respondent submitted that he (appellant 2) also could not, on the facts of the present case, claim that there was no due service on him. The learned counsel for the respondent submitted that, as would appear from the record of the case, the summons issued under the general provisions, i.e. under O.5 Rr.9 to 19 of the Code, must be deemed to be served upon appellant 2, as it was affixed only on refusal to accept the same by appellant 2. It was also submitted that the registered notice returned unserved on 26-9-80, as appellant 2 had left for Patna and later on 3-10-80 the Court ordered for taking steps for fresh service of notice by registered post on appellant 2, which, according to the learned counsel for the appellant, was issued on 4-10-80, as per the office note on the margin. As general notice which was affixed on refusal by the appellant 2 was held to be insufficient by the Court by its order dt. 23-6-80 and, therefore, the Court ordered for issuance of another registered notice which, too, returned unserved on 26-9-80, and then the Court, on 3-10-80 ordered for taking fresh steps for service of notice by registered post on appellant 2. The learned counsel appearing for the respondent, as already stated above, has faintly submitted that a note by the office in the margin was showing the issuance of the registered notice on 4-10-80, but then, in all fairness to the Court, he also drew my attention to the postal receipt (referred to above), which conclusively establishes that the registered notice filed on 3-10-80 was actually sent on 11-11-1980. 17. Thus, the marginal note of the office showing the issuance of the registered notice on 4-10-80 was factually wrong and the refusal by appellant 2 of the earlier general notice having been held to be insufficient and the Court having ordered for taking steps for fresh service; it cannot be said that appellant 2 had any knowledge of the date of hearing in the probate case. 18. 18. The learned counsel for the respondent tried to persuade me to accept his submission that, on the facts of the present case, O.5, R.19A, did not come in picture at all and that the argument advanced by the learned counsel for the appellants on O.5, R.19A was wholly misconceived. The learned counsel for the respondent submitted that the order dated 3-10-80 for taking steps for service of notice by registered post on appellant 2 was either under O.5, R.10 (Patna Amendment) or under O.5, R.20(1) of the Code. 19. I am afraid, the submission advanced by the learned counsel for the respondent is without any substance. As would appear from the facts, as already stated above, the notices under O.5, Rr.9 to 19, were already issued earlier and those notices having not been served on appellant 2 or not accepted by the Court as duly served, it was only thereafter that on 3-10-80, the Court ordered to take fresh steps for notice by registered post on appellant 2. Hence, it cannot be said, as contended by the learned counsel for the respondent, that the order dt. 3-10-80 for taking steps for service of notice by registered post on appellant 2 was either under O.5, R.10 (Patna Amendment) or under O.5 R.20(1) of the Code. 20. The learned counsel for the respondent still tried to persuade me to accept his another limb of submission to the effect that assuming the declaration made about due service by the Court on 4-12-1980 was a premature declaration, it did not affect the merit nor was the jurisdiction affected nor did it cause any prejudice to the appellant and hence the ex parte order in the probate case did not warrant any interference by this Court. The learned counsel for the respondent submitted that it was only a procedural error capable of rectification and as such the Court, if reminded by the party, could rectify the defect under the general power vested in it under S.153 of the Code before the hearing. According to the learned counsel for the respondent, the hearing in the probate case was actually taken on 22-1-81, much after the expiry of thirty days (counting even from 11-11-1980) and hence no prejudice was caused to the appellants; and, in that view of the matter, the ex parte order did not warrant any interference by this Court. According to the learned counsel for the respondent, the hearing in the probate case was actually taken on 22-1-81, much after the expiry of thirty days (counting even from 11-11-1980) and hence no prejudice was caused to the appellants; and, in that view of the matter, the ex parte order did not warrant any interference by this Court. I am afraid, the aforesaid submission of the learned counsel for the respondent is without any substance. The order dt. 4-12-1980, as already quoted above in full, shows that the Court seems to have taken shelter of O.5 R.19A of the Code. The Court in so many words has stated that: "Registry Ka Tamila Abhi Tak Nahi Aya Hai. Ek Mahina Se Upar Ho Gaya. Adhivakta Ko Suna. Vipakshi Yadubir Lal Par Tamila Prapt Mana Gaya". 21. The order dt. 4-12-1980, as it stands, cannot be, in my opinion, interpreted in any other way except that the Court took shelter under O.5, R.19A. It is true that the Court has not mentioned O.5, R.19A in its order but that makes no difference, if the order is really passed under R.19A of O.5 of the Code. Having held as such that this order dt. 4-12-1980 was an order under R.19A of O.5, the only thing to be seen is whether the Court could make a declaration on due service on this date. In view of the fact that the registered notice was factually issued on 11-11-1980 and not earlier (though filed on 3-10-80), as thirty days have not expired oil 4-12-1980 and the Court had no jurisdiction to make declaration of due service on 4-12-1980. The necessary consequence that follows is that there was no service, in the eye of law, on appellant 2 and thus the case was not ready for hearing and the Court could not fix a date for hearing as the case, on the facts stated above, was not ready for hearing. Thus, on 22-1-81 (the adjourned date for hearing) there was no due service on appellant No. 2 and the case was not ready for hearing yet the hearing was taken up and concluded that very day. Thus, on 22-1-81 (the adjourned date for hearing) there was no due service on appellant No. 2 and the case was not ready for hearing yet the hearing was taken up and concluded that very day. Appellant 1 also, for one reason or the other, was not present when the case was taken up for hearing and was not present till the hearing was concluded and it seems abundantly clear that the applicant in the probate case was much too in hurry to take advantage of the absence of the necessary parties in the case and actually closed his evidence in haste on that very day. I do not mean that the applicant in the probate case could not close his case on one day alone but taking the facts as a whole it seems abundantly clear that the applicant in the probate case definitely wanted to take advantage of the absence of the necessary parties on that date. 22. It was also the mistake of the Court as it is absolutely clear on the facts of the case of fix a date for hearing even though the case was not ready for hearing, as the declaration of due service on appellant 2 on 4-12-1980 was itself without jurisdiction as thirty days had not expired from the date of the issuance of the notice on appellant 2 under registered cover. Thus, I hold that the declaration of due service on appellant 2 on 4-12-1980 was without jurisdiction and also a pure and simple mistake of the Court (as it laboured under a misconception that the notice under registered post for appellant 2 was issued on 4-10-80 - I have already stated above that factually it was issued on 11-11-1980). Thus the question of declaration of due service on 4-12-1980 did not arise on that date. The Court should have realised and appreciated its own mistake and should not have fixed a date for hearing. The Court should have been a little more alert and could rectify its own mistake and should have prevented the abuse of the process of the Courts in giving justice to the parties. I am constrained to state that the applicant in the probate case, in all fairness, also should have drawn the courts attention but the Court was not apprised of this fact even by the applicant in the probate case. I am constrained to state that the applicant in the probate case, in all fairness, also should have drawn the courts attention but the Court was not apprised of this fact even by the applicant in the probate case. It is well settled that a party cannot be allowed to suffer for the mistake of the Court. 23. Thus, all the submissions advanced by the learned counsel for the respondent fail and I hold that the submissions advanced by the learned counsel for the appellants are valid and legal and the same are accepted as they have enough force. 24. Then remains one more aspect to be considered in this case. The case of the appellant 2, in the application filed under O.9 R.13 of the Code, was not that he was prevented by sufficient cause, but his case was that no notice of the probate case was ever served upon him and he had no knowledge of the said case with the result that he could not appear on the date when the said case was taken up for ex parte hearing. The Court below in its order dt. 27-1-82 dismissing the application under O.9, R.13 of the Code has not dealt with this aspect at all. In an application under O.9, R.13 of the Code the aggrieved party has to satisfy that the summons was not duly served or that he was prevented by any sufficient cause for appearing when the suit was called for hearing. The word used in R.13 of O.9 of the Code is disjunctive, i.e. or. In the instant case, the case of appellant 2 was that summons was not duly served upon him. The Court below has held that the applicants (appellants in the present appeal) did not lead any evidence and hence they must fail. It is true that, admittedly, the applicants/appellants did not adduce any evidence. The question arises whether in the absence of the evidence on the part of the appellants, could an application under O.9, R.13 of the Code be dismissed if it did not require any evidence. The question was whether the summonses were duly served on them or not. If the summonses were not duly served even on one (as on appellant 2 here) the case was not ready for hearing and the Court could not proceed with the hearing. The question was whether the summonses were duly served on them or not. If the summonses were not duly served even on one (as on appellant 2 here) the case was not ready for hearing and the Court could not proceed with the hearing. The Court below proceeds on the assumptions that as the Court in seisin of the probate case had declared "due service" after the expiry of one month from the date of the issuance of notice under registered cover, the notice was duly served upon appellant 2 and proceeded on that assumption (in other words having taken the declaration to be a good declaration in the eye of law). The Court below in its order dismissing the application under O.9 R.13 of the Code held that appellant 2 had to adduce evidence to show that the notice was not served upon him and in the absence of any evidence on its part, it must be taken that the notice was duly served on him. I have already held above that the declaration of due service on appellant 2 in the probate case on 4-12-1980 was without jurisdiction and also due to pure and simple mistake of the court - the reason being that thirty days had not elapsed since the issuance of notice under registered cover on appellant 2. In that view of the matter, the court below was wholly wrong in dismissing the application under O.9, R.13 of the Code on the ground on which it has been dismissed. 25. Shortly put on 22-1-81 when the probate case was taken up for ex parte hearing, it was not ready for hearing. On 4-12-1980 no declaration of due service of notice under registered cover could be made by the Court in the probate case as thirty days had not elapsed as the notice under registered cover on appellant 2 was actually issued on 11-11-1980. It was pure and simple mistake of the Court in the probate case to have made a declaration under O.5, R.19A and the litigant cannot be allowed to suffer for the mistake of the Court. Thus, all the submissions advanced by the learned counsel for the appellants succeed. 26. In the result, this appeal is allowed. The order dt 27-1-82, passed in Misc. Case No. 39 of 1981, is set aside. The ex parte order dt. Thus, all the submissions advanced by the learned counsel for the appellants succeed. 26. In the result, this appeal is allowed. The order dt 27-1-82, passed in Misc. Case No. 39 of 1981, is set aside. The ex parte order dt. 27-1-81 for the grant of probate to the respondent passed in Probate Case No. 194 of 1979 is hereby set aside and the probate case 194 of 1979 is restored to its original file for rehearing. The Judicial Commissioner, Ranchi, will now proceed with the Probate Case No. 194 of 1979, in accordance with law and will dispose that of after hearing the parties, in accordance with law. 27. However, there will be no order as to costs.