Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 325 (CAL)

Swastika Sen v. Pritam Sen

2009-04-23

PINAKI CHANDRA GHOSE, S.P.MITRA

body2009
JUDGMENT 1. THIS appeal is directed against the judgment and order dated 25th September, 2008 passed by the Hon'ble First Court dismissing the application filed by the appellant (defendant) in the suit being C. S. No. 223 of 2005. 2. IT appears from the facts that on 23rd April, 2007, the appellant made an application before the Hon'ble First Court, inter alia, praying for the following orders : " (a) An order be made directing the plaintiff to serve the Writ of summons and a copy of the plaint filed in the present suit on the petitioner (the defendant) ; (b) An order be made giving leave to your petitioner to enter appearance in the present suit and to file written statement within a period of four weeks from the date of service of the Writ of summons and a copy of the plaint filed in the present suit on your petitioner (the defendant);" Therefore the question is whether the service of the Writ of summons was effected upon the defendant through Process Server and through the Postal Service. 3. THE facts reveal that the Hon'ble First Court being satisfied about the service of Summons upon the defendant directed the suit to appear in the list as an undefendant suit. In spite of service the defendant failed to entered appearance in the suit. The said suit was heard before the Hon'ble court on several days. At the time of completion of evidence led by the plaintiff, the defendant did appear and prayed for service of the Writ of summons and further prayed for leave to enter appearance in the suit and to file written statement in the suit. 4. THE appellant appears before this Court through learned Senior advocate, Mr. Pratap Chatterjee. He contended that the respondent (plaintiff)has relied on the following documents regarding service of Summons by the Process Server : (i) A handwritten report (in Bengali) dated 22nd December, 2004 of Chunnilal Sardar, Process Server as well as English translation thereof, and (ii) regarding service by post, the plaintiff relied upon the postal acknowledgment receipt signed by Gopal Roy. According to Mr. Chatterjee it would be evident from the report dated 22nd December, 2005 of the Process Server, he went to the 4th floor of Premises No. 49/65, Prince Mohammed Road, Kolkata-700 033 on 22nd December, 2005 at about 2. According to Mr. Chatterjee it would be evident from the report dated 22nd December, 2005 of the Process Server, he went to the 4th floor of Premises No. 49/65, Prince Mohammed Road, Kolkata-700 033 on 22nd December, 2005 at about 2. 00 p. m. and affixed a copy of the Writ of summons on the gate of 4th Floor of the said Premises. He submitted that the said Premises is a four-storied building and on the 4th Floor of the said building is the roof. The defendant, since 1999, has been and still is residing with her father in the flat on the 3rd Floor of the said building. He further submitted that the name and address of the Process Server (as is required under Order V Rule 17 of the Code of Civil Procedure, 1908) have not been stated in the report. He further drew our attention to the oral evidence of the process Server (Chunilal Sardar) and submitted that the statement of the process Server cannot be accepted or to be believed, since he tried to modify his report (in Bengali) and he made inconsistent statements. 5. REGARDING the Service of Summons, Mr. Chatterjee contended that the defendant has never authorized or empowered Gopal Roy, the erstwhile driver of the father of the defendant to accept service of Writ of summons. No evidence has been adduced'by the plaintiff to show that gopal Roy was an agent of the defendant who is authorized to accept the service of Writ of Summons. He further drew our attention of Section 114 of the Indian Evidence Act, 1872 and submitted that regarding regular performance of official acts of postman is rebuttable and not applicable to the facts of the present case. He further submitted that a servant is not a member of the family within the meaning of Rule 15 of Order V of the Code of Civil Procedure. He also relied upon an unreported decision in G. A. No. 1803 of 2002 in P. L. A. No. 28 of 2002 in the case of Bhagwati Prasad choudhury wherein the Court held that a Durwan cannot be termed to be an agent of the petitioner. He also drew our attention in Rule 9 (3) of Order v of the Code of Civil Procedure and submitted that the expression "the defendant or his agent empowered to accept service" has been used. He also drew our attention in Rule 9 (3) of Order v of the Code of Civil Procedure and submitted that the expression "the defendant or his agent empowered to accept service" has been used. He further drew our attention in Rule 9 (5) and Rule 17 of Order V of the Code of Civil Procedure and contended that the expression "agent empower to accept service has not been used, it is respectfully submitted that the expression "his agent" used in Rule 9 (5) and Rule 17 of Order V should mean "his agent empowered to accept the service" as provided in Rule 9 (3)of Order V of the Code of Civil Procedure. In support of this, Mr. Chatterjee has relied upon the decision reported in AIR 1952 Cal 781 (Tripura Modem bank Ltd. v. Bansen and Co. . 6. MR. Chatterjee also relied upon a decision reported in (2007)9 scc 466 (Nahar Enterprises v. Hyderabad Allwyn Ltd. and Anr.), in support of his contention. He also relied upon Rule 36 of Post Office Guide, Part-l and submitted that the respondent (plaintiff) has failed to prove that 'gopal Roy' was an agent of the appellant (defendant). 7. ON the contrary, Mr. Krishnendu Gooptu, learned Counsel, appearing on behalf of the respondent/plaintiff submitted that the suit was directed to be heard after the service of Summons was effected upon the defendant. He further submitted that the suit was heard on various days. He also drew our attention to Chapter X of the Original Side Rules in particular and submitted that the defendant did not file the written statement and not entered appearance in the suit. He further submitted that Code of civil Procedure (Amendment) Act, 1999 (46 of 1999), Section 15 (iv) has omitted the entire earlier Order V Rule 19-A and, as such no further requirement is existing for service through process server as well as postal service through Post Office. Any one service will be sufficient to hold that summons was duly served. Mr. Gooptu contended that the both modes of service were duly effected and the service was of the Writ of Summons with the plaint annexed issued by the High Court caused to be served through the Process Server of the Alipore Court upon the defendant since the defendant is residing within the jurisdiction of the Alipore Court. The service was also effected through the postal department. The service was also effected through the postal department. He drew our attention to chapter VIII Rule 26 of the Original Side Rules of this Court and Order V rule 21 and 23 of the Code of Civil Procedure about the service of Postal department. 8. HE further submitted that the instant suit, the service of the Writ of Summons together with the plaint was duly effected upon the defendant through the Process Server in the following grounds : 1. A report from the Sheriffs Office prepared by Sri Sobhan Das, dealing assistant at the Sheriff's Office, dated 6th March, 2006 endorsing and stating specifically that personal service has been effected by the process Server by affixing a copy of the summons with a copy of the plaint on the outer door of the premises at 49/65, Prince Gulam Mohammed Shah road, Kolkata-700 033 where the appellant/defendant is residing upon the refusal by the appellant/defendant to accept the copy of the writ of summons. 2. A report or declaration of the Process Server dated 5th January, 2006 and an English translation of the same. The report from the Sheriff's Office as foretasted specifically endorses and mentions the service of the Writ of Summons together with a copy of the plaint, (as is required under the Original Side Rules Chapter viii Rule 2b and Order V Rule 2 of the Code of Civil Procedure). 9. HE further contended that in the instant suit it is a case of refusal to accept personal service of the Writ of Summons after coming to know of the suit through receipt of postal service earlier and by perusing the suit papers when handed over by the Process Server while attempting to serve. The appellant/defendant refused service by the Process Server and then decided to watch the proceedings in complete disregard to the procedural laws. The appellant/defendant caused grave prejudice to the respondent/ plaintiff with the ultimate aim to cause delay and protract the proceedings by seeking to join the suit proceedings whenever the appellant/defendant wishes. 10. THE appellant defendant decided to file the application/petition before the Hon'ble Court below on the sole ground of non-service of summons. Mr. The appellant/defendant caused grave prejudice to the respondent/ plaintiff with the ultimate aim to cause delay and protract the proceedings by seeking to join the suit proceedings whenever the appellant/defendant wishes. 10. THE appellant defendant decided to file the application/petition before the Hon'ble Court below on the sole ground of non-service of summons. Mr. Gooptu submitted that Order V Rules 12 and 15 of the Code of Civil Procedure has no manner of application on the facts and circumstances of the case as it is a case of refusal to accept service by the appellant/defendant in person. The instant case would be squarely covered by Order V Rule 17 of the Code of Civil Procedure and Order V Rule 19 and 19a of the Code of Civil Procedure. 11. ORDER V Rule 17 is set out hereunder : "where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person upon whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was so affixed. The Order V Rule 19 is also set out hereunder: examination of serving officer.- Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit. " 12. HE further drew our attention to Calcutta amendment which substitute the word "declaration" for the word "affidavit". Hence, a declaration of the serving officer, as is existing in this case of Mr. Chunnilal Sardar, would suffice. Order V Rule 19-A (Calcutta): A declaration made and subscribed by a serving officer shall be received as evidence of the facts as to the service or attempted service of the summons. " Therefore, according to Mr. Gooptu, the declaration of the serving officer made in this case should suffice as per Order V Rule 19a of the code of Civil Procedure as evidence of service or attempted service. The indian Evidence Act, Section 114 (e) clearly states that the presumption in, favour of regular performance of judicial and official acts which in the instant case would cover the acts of the Process Server. In case of such declaration being there, as mentioned in Order V Rule 19 of the Code of Civil Procedure, the Courts are still empowered to call and examine the serving officer under' certain facts and circumstances i. e., for clarification or to give a chance to the Process Server to defend or substantiate due service or for proper adjudication of the proceedings. The report or declaration of service is further proved through such deposition. He further submitted that pursuant to Order v Rule 19 of the Code of Civil Procedure this Hon'ble Court passed an order dated 29th April, 2008, calling for the evidence of the Process Server for further clarification on service and regarding the term "char tola or panch tola" and effective adjudication of the proceedings. He further submitted that pursuant to Order v Rule 19 of the Code of Civil Procedure this Hon'ble Court passed an order dated 29th April, 2008, calling for the evidence of the Process Server for further clarification on service and regarding the term "char tola or panch tola" and effective adjudication of the proceedings. The said order was passed at that stage of the proceedings wholly without prejudice to the rights and contentions of both the plaintiff and the defendant in the pending proceedings. 13. HE contended that the serving officer deposed before this Hon'ble court on 03. 06. 2008. This deposition of the serving officer further beyond any doubt proved the factum of due service. In this connection Chapter VIII rule 22 of the Original Side Rules of the High Court at Calcutta becomes relevant. 14. HE also relied upon Chapter VIII Rule 22 where it dealt with the proof of service through another Court and the Writ of Summons has been served through another Court, the service may be proved by the deposition or affidavit of the serving officer made before the Court through the service was effected. In support of such submission he relied upon the decisions reported in AIR 1996 Cal 242 (United Commercial Bank v. Mrs. Raka Sen (Nandi) and AIR 1975 Andhra Pradesh 366 [munassar Bin Jan Nisar Yarjung (died) his L. Rs. Marian Begum and Ors. v. Fatima Begum and Ors]. He further drew our attention to the deposition of the Process server which are as follows :- (i) Answer to question No. 3, 62, 63, 65 and 66 shows that the process Server is a very experienced Court staff doing his job extremely well for a long time and has never been questioned in a Court of law. (ii) The answer to question No. 11,12,13,14,18, 69, 70, 71 and 72 in particular prove that due service was effected. In fact the process Server was quite hassled after service when the dogs of the defendant started chasing or running after him. (iii) The answer to question No. 71 and in particular the question no. 71 itself, put in cross examination by the Counsel of the appellant/defendant, states whether Writ of Summons was served upon the appellant/defendant to which the Process Server answered in the affirmative. (iii) The answer to question No. 71 and in particular the question no. 71 itself, put in cross examination by the Counsel of the appellant/defendant, states whether Writ of Summons was served upon the appellant/defendant to which the Process Server answered in the affirmative. The defence sought to be made out in the arguments before the Hon'ble Court below by the Counsel of the appellant/defendant that only Writ of Summon was served without the plaint is quite an absurdity as the same is diametrically opposite to the case sought to be made out through the petition that had been filed before the Hon'ble Court below. In the said petition the case sought to be made out is of no service at all upon the appellant/defendant and not of service without the plaint. In any event, even if assuming though not admitting, that only the Writ of Summons was served upon the appellant/ defendant then there was nothing stopping the appellant/ defendant from appearing in accordance with law before the hon'ble High Court and making appropriate prayers thereafter. Moreover, the omission of the Counsel in cross examination to put questions on certain points will go in favour of the other side and the points not covered cannot be presumed as has been held in the Orissa High Court Judgment as mentioned hereinbelow. Again, absence in cross examination of certain facts leads to inference of admission of that fact and the same has been also upheld in a Madhya Pradesh High Court judgment as mentioned hereinbelow. As such service of Writ of Summons with plaint would be an admitted position or no adverse inference can be drawn of non-service of plaint with Writ of Summons in the absence of questions put in the cross-examination. The Counsel for the appellant/defendant in question No. 71 had phrased the question as follows : "i put it to you that no Writ of Summons was served on the defendant when the Counsel could have very well asked whether only the Writ of Summons or the Writ of Summons without the plaint was served upon the appellant/defendant. The Counsel for the appellant/defendant in question No. 71 had phrased the question as follows : "i put it to you that no Writ of Summons was served on the defendant when the Counsel could have very well asked whether only the Writ of Summons or the Writ of Summons without the plaint was served upon the appellant/defendant. Furthermore, a report from the Sheriffs office prepared by sri Sobhan Das, dealing assistant at the Sheriffs Office, dated 6th March, 2006 endorsed land stated specifically that personal service has been effected by the Process Server by affixing a copy of the summons with a copy of the plaint on the outer door of the premises at 49/65, Prince Gulam mohammed Shah Road, Kolkata-700 033 where the defendant is residing upon the refusal by the defendant to accept the copy of the Writ of Summons. " 15. HE further submitted that the defendant in fact being fully aware and in a premeditated manner chose to watch the proceedings from the wings and decided to make an application for entering appearance at a time which would cause grave prejudice to the plaintiff and protract the proceedings. Such actions of the defendant can only set bad precedents for the future if not legally struck out forthwith 16. LEARNED Counsel, Mr. Gooptu contended that it is very important to note that the appellant/defendant never sought to prove the. appellant/ defendants case by appearing as a witness or bringing in any other witness. In fact the relevant papers/affidavits filed before the Hon'ble Court below and before this Hon'ble Appeal Court has been affirmed by the appellant/ defendant's father who also chose not to come forward and give any evidence. It is quite absurd to suggest that the case sought to be made out will be made out on its own without any evidence being led. As such the entire evidence of the Process Server remains uncontroverted and unchallenged. He further contended that in the instant suit the service of the writ of Summons together with the plaint was duly effected upon the defendant through the Postal Service, acknowledgement receipt signed by one Mr. Gopal Roy. The documents showing the same are annexed to the affidavit-in-opposition filed by the respondent/plaintiff and are as follows :- 1. Affidavit of Mr. Amar Kumar Sengupta, an assistant from the sheriff's Office showing service. 2. Gopal Roy. The documents showing the same are annexed to the affidavit-in-opposition filed by the respondent/plaintiff and are as follows :- 1. Affidavit of Mr. Amar Kumar Sengupta, an assistant from the sheriff's Office showing service. 2. A copy of the acknowledgement receipt signed by one Mr. Gopal roy. 17. HE submitted that admission of the appellant/defendant in the main petition/affidavit filed by the defendant before the Hon'ble Court in paragraph 18 it is stated as follows : "your petitioner states that in or about November, 2005 one Gopal Roy was a driver of the father of your petitioner. " hence, at the relevant point of time the person who had signed the postal acknowledgement receipt was. very much there to receive at the place of service. 18. HE submitted Indian Evidence Act, 1872 : Section 114 (e) : the presumption is that official and judicial acts have been regularly performed and as such the postal peon had duly served on the person who could be served in the regular course and due discharge of his duties. A postal peon is not trained or directed to serve documents through registered post on anybody, especially documents from the High Court. The peon being satisfied served upon Mr. Gopal Roy. He also submitted the Indian Post Office Act, 1898 : Section 3 (e); Meanings of "in the course of transmission by post" and "delivery"-For the purpose of the Act,- (a ). . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . (c) The delivery of postal article at the house or office of the addressee, or to the addressee or his servant or agent or other person considered to be authorized to receive the article according to the usual manner of delivering postal articles to the addressee, shall be deemed to be delivery to the addressee. 19. HENCE, due delivery of postal article will take place for the purposes of the Indian Post Office Act if the article is delivered to a person considered to be authorized to receive the same. In the instant case the driver (admitted position) Mr. Gopal Roy duly held out to be authorized and the Writ of Summons was delivered to him. HENCE, due delivery of postal article will take place for the purposes of the Indian Post Office Act if the article is delivered to a person considered to be authorized to receive the same. In the instant case the driver (admitted position) Mr. Gopal Roy duly held out to be authorized and the Writ of Summons was delivered to him. When a registered document/ postal article is posted, correctly addressed then the natural presumption is that it reached its destination without anything more to be proved. This point has been further highlighted in Section 27 of the General Clauses act which is as follows : section 27 of the General Clauses Act: This Section makes it clear that there will be deemed service if a document/letter is properly addressed, prepaid and posted by registered post. 20. MR. Gooptu relied upon the following decisions in support of his contention : (i) AIR 1996 Calcutta 242 [united Commercial Bank v. Mrs. Raka sen (Nandi)] ; (ii) AIR 2002 SC 3557 (Basant Singh v. Roman Catholic Mission ). He also submitted that good cause to be shown for previous non-appearance and in order to be heard in answer to the suit. In support of this he submitted that Order IX Rule 7 stipulates that when the suit has been heard ex parte and has been adjourned then when a party decides to appear and contest for the first time then "good cause" to be shown for the suit to be heard in the presence of both parties. It is not as a matter of course, that any party or the appellant/defendant, as it is in the instant case, should be allowed to contest and enter appearance in spite of good service of the Writ of Summons together with the plaint annexed, As such, if all the parties who are unable to show good cause i.e., in other words there being good service yet wants to enter appearance at belated stage then the same will not only set a bad precedent but also encourage litigants to watch proceedings from the fence in spite of service giving a complete go bye to the procedural laws in this regard. This will result in serious prejudice to the opposite party as well or the respondent/plaintiff as in this case. He relied on the following decisions in support of his such contention : 1. This will result in serious prejudice to the opposite party as well or the respondent/plaintiff as in this case. He relied on the following decisions in support of his such contention : 1. AIR 1997 AP 49 (Manduva Srinivasa Rao v. Sajana Granites); 2. (2007)2 Cal HN 918, (Prabir Kumar Burman v. Kashi Nath Das) ; 3. AIR 1997 SC 1919 (Mst Bhabia Devi v. Permanand Pd Yadav ). 21. HE further submitted that the decision cited on behalf of the appellant has no application in the facts and circumstances of this case. 22. THE unreported case being, In the Goods of Bhagabati Prosad chowdhury : This case would be irrelevant inasmuch as in that case no deposition or trial on evidence was undertaken on the issue of service. In the instant case full deposition was taken of the Process Server proving due service. As such and in view of the facts and circumstances of the case, the said case would have no manner of application in the instant case. In AIR 2002 SC 2370 (Sushil Kumar Sabharwal v. Gurpreet Singh and Ors.) the service of summons was effected just a day before the hearing and it was held that process server neither affixed copy of the summons and plaint on the wall of the premises, As such the facts and circumstances of the said case is totally different from the instant ease inasmuch as full and due compliance of the provisions of law has been proved by the declaration and deposition of the process server before this Hon'ble Court. 23. IN AIR 1952 Cal 781 (supra) it is held that "but even if on a liberal interpretation is put upon the word 'agent' in these rules, it would not be sufficient to state that a particular person was the agent of the defendant and had authority to accept service, without adducing evidence to show how such a person came to be the agent of the defendant and how such authority was conferred upon him." It is clear that even in this judgment it is opined that the question of agency can be gone into after adducing evidence. However, this case was cited to illustrate the lack of authority of the driver when postal service was effected upon the defendant, when in fact the law relating to postal service is quite different as enumerated hereinabove. However, this case was cited to illustrate the lack of authority of the driver when postal service was effected upon the defendant, when in fact the law relating to postal service is quite different as enumerated hereinabove. This case cited by the defendant pertains to order V Rules 9, 16 and 17 of the code of Civil Procedure. Therefore, on the facts and circumstances of this instant case especially postal service, the said decision would not have any application. 24. AFTER considering the facts as stated before us and the evidence laid before Hon'ble Single Judge that and after analyzing the said evidence in our opinion, in fact no evidence was adduced by the appellant before the trial Court to make out a case that the person, Gopal Roy had no authority to receive the service. In fact, the said acknowledgement receipt bears a signature of one, Gopal Roy. It is not in dispute that at that point of time gopal Roy was serving as a driver of the appellant. In the facts and circumstances of this case it further appear to us that the evidence of the process Server remains uncontroverted by the appellants. Furthermore, writ of Summons together with the plaint was duly served upon the defendant through the postal service and the acknowledgement receipt was also received. It also cannot be brushed aside the fact that the petitioner/appellant did not even depose before the Court to controvert the statements made by the Process Server or to deny the fact that the postal service was not received by her. On the contrary, Mr. Gooptu has pointed out that the Section 27 of the General Clauses Act would make the position clear to establish that there was a service since the document/letter was properly addressed and posted by Registered Post to the addressee. The point which has been taken that the Gopal Roy had no authority to receive the said article then it was the duty of the appellant/petitioner to come before the Court and to prove the said fact. Since, in our considered opinion, such burden lies on her. Therefore, in our considered opinion, the argument made by Mr. Gooptu has a force on the given facts to accept that the service was effected on the appellant/petitioner. Since, in our considered opinion, such burden lies on her. Therefore, in our considered opinion, the argument made by Mr. Gooptu has a force on the given facts to accept that the service was effected on the appellant/petitioner. Furthermore, the conduct of the appellant would show that there was lack of diligence on her part to take steps in the suit or it is an intentional way to drag the litigation. 25. FOR the reasons stated hereinabove, we do not find any irregularity or illegality in respect of the order so passed by His Lordship and, accordingly, we affirm the same and dismiss this appeal.