Shyam Narayan Prasad v. Benoy Kumar Chourasia — 1986 DIGILAW 324 (CAL)

JUDGMENT 1. THIS appeal arises out of the judgment dated 1st June, 1982 passed by the learned Judge, second Bench, City Civil court. Calcutta in Misc. Case No. 901 of 1981 dismissing the application under Order 9 Rule 13 of the Code of Civil Procedure made by the defendant-petitioner-appellant. 2. IT appears that Title Suit No. 1596 of 1980 was instituted by the plaintiff respondent against the defendant appellant in City Civil Court, calcutta for recovery of possession of premises No. 13/1, Surendra nath Banerjee Road, Calcutta fom the defendant appellant on the ground that the said defendant was a licensee and his licence had been terminated. It appears that the said suit was instituted on 6th August, 1980 and the Registrar of the City Civil Court, Calcutta directed for service of summons in the ordinary manner and also under registered post under Order 5 Rule 19a of the Code of Civil Procedure fixing 18th September 1980 as the date of return of the summons and appearance of the defendant. On 18th September, 1980, it appears that the Registrar of the City Civil Court after perusal of the report of the process server for service of summons in the usual manner had come to the finding that the said summons had not been properly served but as it appeared from the endorsement by the postal peon on the cover sent under registered post that the said registered cover could not be served on the defendant because the same refused by him, the registrar directed that the record should be placed before the learned judge, second Bench, City Civil Court for orders. On 20th September, 1980, the learned Judge looked to the report of the Registrar of the city Civil Court and directed that the suit should be fixed for exparte hearing on 5th December, 1980. The suit was ultimately decided exparte and the decree for eviction was passed by the learned Judge on 6th may, 1981. On 18th September, 1981 the defendant-petitioner-appellant made an application under Order 9 Rule 13 of the Code of Civil Procedure before the learned Judge for setting aside the exparte decree on the ground that no service of Summons had been made on the said defendant and he had no occasion to know about the pendency of the said suit. On the said application under Order 9 Rule 13, Misc. Case no. On the said application under Order 9 Rule 13, Misc. Case no. 901 of 1981 was started and against the dismissal of the said Misc. Case by the learned Judge, the instant appeal has been preferred by the defendant-petitioner-appellant. It appears from the judgment of the learned Judge dismissing the said Misc. Case that the learned Judge considered the bailiff's report regarding service of summons of the said suit on the defendant being Ext. 'a', from the bailiff's report it transpires that the plaintiff attempted to serve the said summons personally on the defendant in presence of the two witnesses but since the defendant had refused to accept that summons the same had been served by affixing in presence of the said witnesses and the signatures of the said witnesses had been obtained and such signatures were Exts. A/1 and A/2. The said witnesses were examined in the Misc. Case and on consideration of the bailiff's report and the evidence adduced by the said witnesses the learned Judge was of the view that the said summons had been duly served, it was also held by the learned Judge that the witnesses were disinterested witnesses and there was no reason to disbelieve them and mere denial by the defendant-petitioner that the summons had not been served on him should not be accepted. So far as the Service of summons by registered post is concerned, the learned Judge has noted that the registered envelope had come back with the endorsement 'refused' by the postal peon and the postman, sri Amal Kumar Chakrabarti was examined as a witness (O. P. W. 4. That said witness has stated in his evidence that he had tendered the registered letter to the defendant but he refused to accept the same. The learned Judge was of the view that as the postman was a disinterested witness, there was no reason to disbelieve him and the denial of the defendant-petitioner, therefore, should not be accepted. Mr. That said witness has stated in his evidence that he had tendered the registered letter to the defendant but he refused to accept the same. The learned Judge was of the view that as the postman was a disinterested witness, there was no reason to disbelieve him and the denial of the defendant-petitioner, therefore, should not be accepted. Mr. Roy Choudhury, the learned Counsel appearing for the appellant petitioner, has contended that the Registrar who was delegated with power to scrutinise the reports of the process server and to give suitable direction in the matter of service, of summons was not satisfied that the service of summons by the process server should be accepted and by his order No. 2 dated 18th September, 1980, the learned Registrar noted that the summons in the ordinary manner had not been properly served. As the service was also sought to be effected by registered post and the registered cover had been received by the Court with the endorcement of the postal peon Refused, the Registrar sent the matter before the learned Judge for appropriate orders. Mr. Roy Choudhury has contended that unfortunately the learned Judge by his order no. 3 dated 20th September, 1980 did not express any opinion as to whether or not the service by registered post on the basis of report of the postal peon should be accepted as a good service and the learned judge had only directed that the suit should be fixed on 5th December, 1980 for exparte hearing. Mr. Roy Choudhury has submitted that it is apparent from the aforesaid facts that the learned Judge, Second bench, City Civil Court, Calcutta who had passed the exparte decree in the said Title Suit did not Hake any contrary view on the report of the Registrar to. the effect that summons in the ordinary process had not been properly served. Accordingly, it should be accepted that the learned Judge endorsed the said report of the learned Registrar that the summons had not been properly served in the usual manner. Mr. Roy Choudhury has contended that it was an incumbent duty of the learned Judge to consider the report of the postal peon about refusal of service of the registered cover containing summons of the said suit and to accept or reject such service by registered post on the basis of the report of the postal peon. Mr. Roy Choudhury has contended that it was an incumbent duty of the learned Judge to consider the report of the postal peon about refusal of service of the registered cover containing summons of the said suit and to accept or reject such service by registered post on the basis of the report of the postal peon. In the instant case, admittedly the learned Judge has not expressed any opinion whatsoever but has only fixed the suit for exparte hearing on a subsequent date. Mr. Roy Choudhury has contended that on a reference to Order 5 Rule 19 of the code of Civil Procedure it will be quite evident that the learned Judge is required to consider the process server's report regarding service, of summons and on such consideration the learned Judge is to accept or to reject the report of the process server. He has contended that the learned Judge is required to exercise his judicial discretion for accepting or rejecting the alleged service of summons on a party and if such judicial discretion is not exercised by him then mechanical fixation of the suit for exparte hearing is patently illegal and is liable to be set aside on an application under Order 9 Rule 13 C. P. Code made by the defendant. In support of this contention, Mr. Roy Choudhury has referred to a Full Bench decision of the Madras High Court made in the case of Parasurama Odayar v. Appadurai Chetty and Ors. reported in AIR 1970 Madras, page 271. The Madras Full Bench has held in the said decision that the Court should declare expressly that the summons has been duly served and although there is no form for such declaration but such declaration in essence must be there. It is very important. that the presiding officer should apply his mind and should consider as to whether or not the summons has been duly served. Mr. Roy Choudhury has also referred to a Bench decision of the Kerala High Court made in the case of Pazhekottal Nabeessu v. Pazhekottal Kunhamina and Ors. reported in AIR 1978 Kerala, page 143. It has been held in the said decision that mere endorsement on the summons as to refusal to accept the same cannot constitute sufficient service under Order 5 Rule 19 unless there is a declaration that the summons has been properly served by the learned Judge. reported in AIR 1978 Kerala, page 143. It has been held in the said decision that mere endorsement on the summons as to refusal to accept the same cannot constitute sufficient service under Order 5 Rule 19 unless there is a declaration that the summons has been properly served by the learned Judge. It appears that the said decision of the Kerala High Court was made relying on another decision of the Kerala High Court made in the case of Daveed Aseervadam v. Krishna Pillai Govinda Pillai reported in 1970 Kerala Law Times, page 1907. Mr. Choudhury has also referred to a Single Bench decision of this Court made in the case of Kashitish Chandra Kayal v. Abinash chandra Halder reported in 86 CWN page 100. This Court has also held in the said decision that it was obligatory on the part of the learned judge to consider as to whether or not summons had been duly served and to get a finding to that effect. It appears that the learned Judge in the said decision has also relied on the Full Bench Decision of the madras High Court reported in AIR 1970 Madras, Page 271. Mr. Roy choudhury has also referred to a Bench decision of the Assam High court made in the case of Bampatlal Keshan and Ors. v. Baliprasad Shah and Ors. reported in 54 CWN page 92. The learned Judge has noted that there is a conflict of authority on the point that as to whether or not a declaration that proper service had been effected is required to be made by the learned Judge under Order 5 Rule 19 of the Code of Civil Procedure. The learned Judge has, however, held that even if it is assumed that an express declaration of due service is necessary under the rule, omission of such declaration Will be an irregularity on the basis of which a party adversely affected by such omission of declaration may ask for an opportunity of being heard. Mr. Roy Choudhury has, therefore, submitted that simply because the learned Judge has directed the suit to be heard exparte on a subsequent date and as a matter of fact has heard the said suit exparte and decided against the defendant, it cannot be held that the learned Judge had accepted that the summons had been duly served. Mr. Mr. Roy Choudhury has, therefore, submitted that simply because the learned Judge has directed the suit to be heard exparte on a subsequent date and as a matter of fact has heard the said suit exparte and decided against the defendant, it cannot be held that the learned Judge had accepted that the summons had been duly served. Mr. Roy Choudhury has contended that unless the learned Judge takes into consideration the report of the process server or the postal peon about the service of summons arid takes one view or the other, it cannot be held that he has exercised his judicial discretion and function under the provisions of Order 5 rule 19 of the Code of Civil Procedure. Mr. Roy Chowdhury has contended that the position has not been changed because of addition of rule 19a under Order 5 in the Code of Civil Procedure by the Amendment act of 1976. He has also submitted that for ensuring speedy service of summons, the provisions of Order 5 Rule 19a has been introduced but the basic requirement of the learned Judge to consider the report of the process server and/or the postal peon about the service of summons and to take one view or the other remains unaffected even after incorporation of Rule 19a of Order 5 of the Code of Civil Procedure. Mr. Roy Chowdhury has contended that it therefore must be held that there has been a gross irregularity by the learned Judge in proceeding to hear the suit exparte and the exparte decree has resulted in a serious failure of justice to the defendant. Mr. Roy Chowdhury has also submitted that at the hearing of the: said Misc. Case, the learned Judge also proceeded erroneously in taking into consideration the validity of the service of summons by the process server of the court. He has submitted that there was no occasion for the learned Judge to take into consideration of the alleged service by the process server because the Registrar had not accepted the same and no contrary view had been taken by the learned Judge when the report of the Registrar about unsatisfactory service by the process server had been placed before the learned Judge. Mr. Roy Choudhury has submitted that in passing the impugned judgment in the Misc. Mr. Roy Choudhury has submitted that in passing the impugned judgment in the Misc. Case, the learned Judge appears to have been influenced to a great extent because of his finding that the service of summons in the ordinary process had been duly effected but the defendant had refused to accept the same. Mr. Roy choudhury has submitted that so far as the service of summons by the registered post is concerned, the learned Judge has relied on the evidence of the postal peon that he had effected such service on the defendant, but the defendant refused to accept the same. The learned judge is of the view that the postal peon is a disinterested witness and as such his deposition should be accepted. Mr. Roy Choudhury has drawn the attention of the court at the hearing of the appeal that the postal peon should not be believed because he has not been telling truth in his deposition. It is the deposition of the postal peon that he had been to 13/1 S. N. Banerjee Road on two occasions viz, on 30th august, 1980 and 1st September, 1980. On the first date the postal peon did not find the addressee but on the second day the addressee refused to accept the postal cover when tendered by him. Mr. Roy choudhury has submitted that although the postal peon has stated that he knows the addressee defendant Shyam Narayan Prasad from before hand as he has delivered letters to him previously and the said statement was believed by the learned Judge on the ground that the postal peon was a disinterested witness, the learned Judge has failed to take note that the very same witness had to admit in the cross-examination that he did not remember if on any previous occasion he had gone to 13/1, surendra Nath Banerjee Road, Calcutta. If the postal peon had not gone to 13/1 Surendra Nath Banerjee Road on any previous occasion there cannot be any occasion to deliver letters by him at the said address to the defendant so that by such process he had the occasion to know him personally. Mr. If the postal peon had not gone to 13/1 Surendra Nath Banerjee Road on any previous occasion there cannot be any occasion to deliver letters by him at the said address to the defendant so that by such process he had the occasion to know him personally. Mr. Roy Choudhury has submitted that had the evidence of postal peon been considered in its proper perspective, the learned Judge could not have accepted the deposition of the postal peon that he had tendered the registered letter to the defendant but the same was refused. 3. MR. Banerjee, the learned Counsel appearing for the respondent has, however, contended that in all the decisions relied on by Mr. Roy choudhury, the provisions of Order 5 Rule 19 of the Code of Civil procedure had been considered but in none of the said decisions there was any occasion for the learned Judges to take into consideration of the changed position in the matter of service of summons as introduced by the provisions of Rule 19a of Order 5 of the Code of Civil procedure by the Amendment Act of 1976. He has contended that if there is an endoresement by the postal peon on the registered cover to the effect that the said registered cover could not be served as the same was refused by the addressee, the court on seeing such endowment of the postal peon is to accept such service as a good service. There is no option left to the learned Judge on the face of such endorsement by the postal peon on the registered cover to take one view or the other about the proper service at that stage. In this connection, mr. Banerjee has referred to a decision of the Rajasthan High court made in the case of Prakash Chander v. Smt. Sunder Bai and Anr. reported in AIR 1979 Rajasthan, page 108. It has been held in the said decision that it would be too-hyper-technical that there should be an explicit declaration by the learned Judge that a summons had been duly served. reported in AIR 1979 Rajasthan, page 108. It has been held in the said decision that it would be too-hyper-technical that there should be an explicit declaration by the learned Judge that a summons had been duly served. What Rule 19a contemplates is that the court should examine the registered letter containing the summons and look in to the endorsement made by the postal employee regarding refusal and thereafter the Court may proceed to pass an exparte order contemplated under Order 9 Rule 6 of the Code of Civil Procedure on the basis that the summons had been duly served. It would be sufficient or substantial compliance of Order 5 Rule 19a if on perusal of the report of the postal peon a suit is fixed for hearing exparte. The learned Judge has further held that the expression 'shall" it the proviso to Rule 19a prima facie indicates that the provisions of Rule 19a is mandatory. The learned judge has further held that the expression "shall" in its ordinary significance is imperative but much would depend upon the real intention of the legislature and for ascertaining the real intention of the legislature the court may consider the nature of the statute and the consequences which would flow from construing it in one way or the other. Mr. Banerjee has contended that in order to avoid delay in the matter of service of summons, Rule 19a under Order 5 has been introduced by the amendment of the Civil Procedure Code in 1976. The legislature has intended that simultaneously with service by the ordinary process service by registered post should be made and it is also the intention of the legislature that if the endorsement by the postal peon showing service of summons and/or refusal of the same is received by the Court, the Court will accept the said report and proceed accordingly. In view of such intention of the legislature which can be clearly demonstrated from Rule 19a there is no discretion left to the learned Judge not to accept the endorsement made by the postal peon in the registered cover. In view of such intention of the legislature which can be clearly demonstrated from Rule 19a there is no discretion left to the learned Judge not to accept the endorsement made by the postal peon in the registered cover. He has submitted that in the instant case the Registrar, City civil Court had sent the report of the process server with his remark on the report of the process server and also the report of the postal peon about service of registered cover containing the summons before the learned Judge of the City Civil Court. The learned Judge on seeing the said report of the Registrar directed for setting down the case for exparte hearing. Mr. Banerjee has submitted that in such circumstances, a formal declaration that the service is a good service is only superfluous and he has submitted that the Rajathan High Court has rightly held that it would be too hyper-technical to contend that in such circumstances there should be an explicit declaration by the learned judge that the summons had been duly served. Mr. Banerjee has also contended that for obtaining an order for setting aside exparte decree under Order 9 Rule 13 of the Code of Civil Procedure the Defendant is required to establish that he had no occasion to know that the suit in question had been instituted against him and as such he was prevented from appearing and contesting the same. To appreciate the bonafide of the case of the defendant that he was not aware about the institution of the said suit by the plaintiff and it was only after the exparte decree had been passed that he had come to know of such exparte decree and there after had taken steps to set aside the exparte decree, the learned Judge had considered the manner of service effected on the defendant both by the ordinary process and by registered post. He has, therefore, submitted that the learned Judge has not gone wrong in taking into consideration the proper service effected by the process server. Mr. Banerjee has also submitted that the peon was a disinterested witness and he has categorically stated that he had tendered the said registered envelope to the defendant himself but he had refused to accept the same. Mr. Banerjee has also submitted that the peon was a disinterested witness and he has categorically stated that he had tendered the said registered envelope to the defendant himself but he had refused to accept the same. Simply because he has stated that he did not remember as to whether or not on any previous occasion he had been to premises no. 13/1 S. N. Banerjee Road, it cannot be inferred that the postal peon had not tendered the said registered cover. Mr. Banerjee has submitted that in the facts of the case this Court should not interfere with the finding of the learned Judge that the summons had been duly served on the defendant and as such the application under Order 9 rule 13 should be dismissed. 4. AFTER considering the respective contentions of the learned counsels appearing for the parties, it appears to us that under sub-rule (2) of rule 19a of Order 5 of the Code of Civil Procedure, the learned Judge is under an obligation to accept the report of the postal peon about the refusal of the postal cover by the person concerned and on the basis of the report of the postal peon the learned Judge "shall declare that the summons had been duly served on the defendant. " The learned judge is not required to consider the acceptability of the said report of the postal peon and to take one view or the other at this stage. The report of the postal peon is to be accepted on the face of it and the declaration that a proper service has been made is to be made on the basis of the report of the postal peon. The proviso to sub-rule (2) indicates that if the summons is sent by registered post with acknowledgment due at the correct address, the declaration of a valid service shall be made by the learned Judge, even if the acknowledgment receipt is not received back by the Court within thirty days from the date of issue. The proviso to sub-rule (2) indicates that if the summons is sent by registered post with acknowledgment due at the correct address, the declaration of a valid service shall be made by the learned Judge, even if the acknowledgment receipt is not received back by the Court within thirty days from the date of issue. The requirement of application, of judicial mind under Order 5 Rule 19 of the C. P. C. for the purpose of finding out as to whether or not service had been properly made and indication of such view by the learned Judge will not apply in the case of service effected by registered post under Rule 19a of Order 5 when the postal peon has given a report about the service. As aforesaid, the proviso to sub-rule clearly indicates that on the basis of presumption of serviced of registered letter to the addressee, a declaration should be made by the court even when the acknowledgment is not received within thirty days. If under sub-rule (2) of Rule 19 A, the learned Judge is required to make a declaration on the basis of the report of the postal peon that the service has been effected on the addressee or his authorised agent or such person has refused to accept such service, the question of exercising judicial mind and to take one view or the other about the validity of service loses its significance. In the aforesaid circumstances, declaration about service of, summons is only dependent on the report of the postal peon and not on judicial determination. Hence, if on the basis of the report of thee postal peon the learned Judge has set down the suit for exparte hearing it may be reasonably presumed that he has taken into consideration of the report of the postal peon and has acted in accordance with the mandate of sub-rule (2) of Rule 19a of the Order 5 of the Code of Civil Procedure. It appears to us that declaration on the basis of the report of the postal peon that service of summons has been effected will be a mere formality and as such insistence of a formal declaration about a valid service will be hyper-techincal. In this respect we endorse the view of the Rajasthan high Court reported in A. I. R. 1979 Rajasthan page 108. In this respect we endorse the view of the Rajasthan high Court reported in A. I. R. 1979 Rajasthan page 108. On the merits of the case, however, it appears to us that Mr. Roy Choudhury is justified in his contention that when the Registrar of the City Civil Court had not accepted the report of the process server about proper service of summons by him and on such report of the Registrar the Court did not express any opinion to the contrary, it must be held that such service by the process server had not been accepted either by the Registrar or by the learned Judge. In the aforesaid circumstances, the learned judge had gone wrong in taking into consideration the validity of service of summons effected by the process server in deciding the said misc. Case arising out of application under Order 9 Rule 13 C. P. Code. Mr. Roy Choudhury, in our view, is justified in his contention that the finding made by the learned Judge in the said Misc. Case that there was also a valid service effected by the process server is likely to influence the ultimate decision of the learned Judge in the said Misc. Case. So far as service of summons by the postal peon is concerned, it appears to us that the postal peon has made inconsistent statement. He had stated that he know the defendant whom he had tendered the registered cover at 13/1, S. N. Banerjee Road but he was constrained to admit in the cross-examination that he did not remember that on any previous occasion he had been to the said premises No. 13/1, S. N. Banerjee road. The postal peon has not stated that he had the occasion of knowing the defendant apart from service of letters to the said defendant at the said premises. In the aforesaid circumstances, if the postal peon could not remember that on any previous occasion he had been to the said premises, it will be very difficult to accept his evidence that he know the defendant and when he attempted to serve the registered cover on the defendant, the defendant had refused to accept the same. It therefore becomes quite doubtful as to whether or not the service of the summons had been effected on the said defendant by the postal peon. It therefore becomes quite doubtful as to whether or not the service of the summons had been effected on the said defendant by the postal peon. The suit was instituted by the plaintiff for recovery of possession of the premises where the defendant had been carrying on his business as a shop-keeper and in the usual probability it was quite likely that the defendant should try to defend the said suit if he was aware that a suit for his eviction and recovery of possession had been instituted by the plaintiff. In the aforesaid circumstances, it appears to us that when the service by the postal peon upon the defendant has not been established beyond doubt, the defendant should be given an opportunity to contest the said suit and not to suffer an exparte decree for eviction. We, therefore, allow this appeal and set aside the order dismissing the said Misc. Case and allow the application under Order 9 Rule 13 of the Code of Civil Procedure. There will be no order as to costs. As the suit was instituted long back, it is only desirable that the suit should be disposed of as early as practicable by the learned trial Court. Appeal allowed.