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2017 DIGILAW 61 (RAJ)

Rajendra Singh Chouhan v. State

2017-01-05

GOVERDHAN BARDHAR, NAVIN SINHA

body2017
JUDGMENT 1. The present case reflects a very sorry state of affairs at the very inception of the case with regard to service of notice before the case can become ripe for hearing. 2. Two copies of appeal were directed to be served in the office of the Advocate General/Additional Advocate General within one week and proof of service by way of acknowledgment had to be filed within the same period failing which the appeal would stand dismissed without further reference to the Bench. The Appellant served two sets of the memo of appeal in the office of Additional Advocate General No.1 on 21.10.2016, obtained receipt and filed it in the Registry of the Court on 22.10.2016. Despite the same the name of the Additional Advocate General No.1 does not appear in the cause list. It was the duty of the Registry to enter the name of the Additional Advocate General No.1 in the software so that his name could be printed in the cause list. Resultantly, on the first call no body appeared on behalf of the Additional Advocate General No.1 and only on the second call there was representation with an apology that the name was not appearing in the cause list. 3. The Registrar General is directed to ensure that henceforth in all such matters where acknowledgment in proof of service or appearance is filed by a Counsel, the Registry shall mandatorily ensure that the name of the Counsel/Government Counsel is entered into the software immediately so that it is reflected in the cause list also. 4. Notwithstanding the fact that two sets were directed to be served in the office of Additional Advocate General, today adjournment has been sought for compliance of the order dated 19.10.2016 for instructions. The second copy was meant for the State Authorities to ensure that instructions were given to the State Counsel without delay. 5. Notices were also issued to the private Respondent No.4 by registered post and ordinary process. Counsel for the Private Respondent No.4 submits that notice received by registered post does not contain a copy of memo of appeal and it may be provided to him. 6. The Court is informed that the practise is that if notice is sent by ordinary process, copy of the pleadings are enclosed. But if it is sent by registered post copy of the pleadings are not enclosed. 7. 6. The Court is informed that the practise is that if notice is sent by ordinary process, copy of the pleadings are enclosed. But if it is sent by registered post copy of the pleadings are not enclosed. 7. Rule 98 and 99 of the High Court of Judicature for Rajasthan Rules, 1952 reads as follows:- 98. Service of notice by post or publication. - Any notice may in lieu of or in addition to any other mode of service provided by law or by these Rules be served, if so ordered, by sending it by registered post addressed to the person upon whom it is to be served or by publishing it in a newspaper. A notice served by registered post shall, unless it is received back from the post office as undelivered, be deemed to have been served at the time at which it would be delivered in the ordinary course of post. 99. Presumption of service in case of a notice sent by registered post. - Where a notice has been sent by registered post it may be presumed to have been duly served if- (i) the cover containing the notice is not returned back as undelivered by the post office within one month of the date of despatch of such cover; (ii) the cover is received back with an endorsement purporting to be by a postal servant stating that the addressee refused to receive the cover containing the notice; or (iii) where the notice was sent acknowledgment due, an acknowledgment purporting to have been signed by or on behalf of the addressee is received from the post office." 8. Also relevant Rules are 251 and 252 which read as follows:- 251. Supply of process fees etc. - As soon as the Bench has been constituted, the case shall be put up before it and it may direct that notice be issued to the defendant to appear and answer the claim. Process fees for the issue of notices, summonses or other processes, cost of advertisement, if any, and copies of plaints, petitions, affidavits etc. for service on the defendant, if not supplied at the time of the presentation of the plaint, shall be supplied by the plaintiff within ten days of the date of the order directing the issue of notice to the defendant. for service on the defendant, if not supplied at the time of the presentation of the plaint, shall be supplied by the plaintiff within ten days of the date of the order directing the issue of notice to the defendant. If this is not done, the plaint shall be listed before the Court for being rejected and shall be rejected unless the Court for sufficient cause shown allows further time for supplying such process fees, cost of advertisement or copies, as the case may be. 252. Notice. - On the plaintiff complying with the requirements of the next preceding Rule, notice shall be issued to the defendant to appear and answer the claim on a date to be specified therein. Such notice shall also direct that if he wishes to put up a defence he shall file his written statement together with a list of all documents in his possession or power or upon which he intends to rely in support of his case at least ten days before the date fixed and that in case of delay he may be liable to pay the costs of any adjournment that may be necessitated thereby. 9. Rule 251 has to be read harmoniously with Rule 98. The Rules must be read harmoniously in conjunction with each other. Any interpretation that copy of the pleadings is required to be sent with the notice only when it is to be served by ordinary process will not only be contrary to the rules but shall be giving a stultifying interpretation defeating the cause of justice, delaying the preparation of the case for hearing. 10. Today with technological advancement, service of notice by registered post is being monitored by the Court from the postal website also and at times service is complete much earlier in time than it takes to serve by ordinary process. 11. We therefore direct that henceforth when notices are issued by registered post acknowledgment due it shall be accompanied by a copy of the pleadings. 12. Counsel for the Appellant submits that he shall be giving a copy of the memo of appeal to Counsel for the private Respondent No.4 within one week.As jointly prayed, list on 02.02.2017.Directions Issued. *******