JUDGMENT J.B. Pardiwala, J. 1. By this application under Article 227 of the Constitution of India, the applicant (original plaintiff) calls in question the legality and validity of the order passed by the Judge, Commercial Court, Vadodara dated 20th December 2018 in the Commercial Civil Miscellaneous Application No. 50 of 2018 preferred by the respondent herein (original defendant No. 1) in the Commercial Civil Suit No. 111 of 2018. 2. We take notice of the fact that the Commercial Civil Miscellaneous Application No. 50 of 2018 came to be instituted by the respondent No. 1 (original defendant No. 1) under the provisions of Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short, 'the C.P.C.') for setting aside an ex parte money decree passed by the Commercial Court against the defendant No. 1 in the Commercial Civil Suit No. 111 of 2016. The application under Order IX Rule 13 of the C.P.C. preferred by the defendant No. 1 came to be allowed by the Commercial Court. The ex parte judgment and decree passed in the Commercial Civil Suit No. 111 of 2016 was ordered to be quashed and set aside and the Commercial Civil Suit No. 111 of 2016 was ordered to be restored to its original file to be proceeded further. The original plaintiff, being dissatisfied with the impugned order passed by the Commercial Court, is here before this Court with the present application. 3. Mr. Trivedi, the learned senior counsel appearing for the respondent No. 1 herein (defendant No. 1), in the course of the hearing of this matter, furnished a chronology of dates and events, a copy of which also came to be furnished to Mr. Dipak R. Dave, the learned counsel appearing for the original plaintiff. We quote the chronology of events with relevant dates so as to give a fair idea about the facts giving rise to this application as under: 1 2003-2005 The Gujarat State Electricity Corporation Ltd. ('GSECL', for short) i.e. Petitioner herein, formerly known as The Gujarat Electricity Board, made several attempts through tenders and even held negotiations with interested parties to dispose off the material/equipments being 3 x 13 MW (derated) Unit Nos. 4, 5 and 6 on "as is where is" basis lying in old Utran Power Plant, Surat. 2 'Dec. 4, 5 and 6 on "as is where is" basis lying in old Utran Power Plant, Surat. 2 'Dec. 2005 In furtherance of the above, the Respondent No. 1 approached the officials of GSECL and during the course of negotiation held with the Respondent No. 1, GSECL asked the Respondent No. 1 to deposit Rs. 22 Lakhs as Earnest Money Deposit ("'EMD" for short). Accordingly, the Respondent No. 1 deposited Rs. 22,00,000/- by way of three demand drafts in favour of GSECL, all dated 14.12.2005. 3 22.02.2005 GSECL appointed one M/s MSTC Ltd. (˙MSTC', for short) i.e. Respondent No. 2, as its selling agent, to hold an e-auction in respect of sale of Units no. 4, 5 and 6 of old Utran Power station on "as is where is" basis, with a request to collect Rs. 22 Lakhs as prebid EMD from each of the bidders prior to e-auction, meaning thereby, before submitting any bid, the bidders were required to pay Rs. 22 Lakhs as EMD. 4 10.03.2006 The GSECL addressed a letter to MSTC, conveying the commercial terms and conditions binding the parties inter-se and also providing the terms and conditions for prospective bidders. Note: As per one of the commercial terms and conditions i.e. Clause No. 2, the purchaser was to pay an amount of Security Deposit at the rate of 10% of the total sale value accepted (i.e. 50% of Security Deposit will be in the form of Bank Guarantee and 50% in the form of Demand Draft). It also provided that the pre-bid EMD of Rs. 22 Lakhs will be adjusted against the Security Deposit amount and the said Security Deposit should be paid within seven days on issuance of the order/acceptance letter. 5 04.04.2006 The Respondent No. 1 deposited Rs. 11,026/by way of Demand Draft No. 267597 with MSTC towards Entry permit and e-auction No. MSTCNAD/GSECL, H.O. VADODARA/06-07/1 was conducted by MSTC at its Vadodara Office. 6 12.04.2006 The Respondent No. 1 was declared the highest bidder and accordingly, a sale intimation letter came to be issued in his favour, inter alia, provisionally accepting the bid of Rs. 25,21,00,000/(Rupees Twenty-Five Crores and Twenty-One Lakhs Only) for sale of Lot no. 1 subject to the approval of the seller i.e. GSECL, with a direction to deposit Rs. 2,52,10,000/by way of Security Deposit. 25,21,00,000/(Rupees Twenty-Five Crores and Twenty-One Lakhs Only) for sale of Lot no. 1 subject to the approval of the seller i.e. GSECL, with a direction to deposit Rs. 2,52,10,000/by way of Security Deposit. Note: (i) This ought to have been a 'Sale Order' and not 'Provisional Sale Intimation'. as provided in Clause No. 2 of the Commercial Terms and Conditions to the effect that "....S.D. should be paid within seven days on issuance of the sale order/acceptance letter...." (ii) The said Provisional Sale Intimation Letter also provided that if the Respondent No. 1 fails to make payment of Rs. 2,52,10,000/- (Rupees Two Crores Fifty-Two Lakhs Twenty-One Thousand Only) towards Security deposit. then Entry permit would be forfeited. 7 16.04.2006 On the Respondent No. 1's request for an extension of time to deposit the security amount, the MSTC granted extension of 15 days, but, despite the Respondent No. 1's several requests for the grant of acceptance letter so that it could deposit the security deposit with the MSTC, no response was received from GSECL. 8 03.10.2006 MSTC addressed a letter and intimated to the Respondent No. 1, that Respondent No. 1 has committed breach of the contract owing to non-deposit of security amount and in view thereof, MSTC terminated the contract and restored the sale of Lot No. 1 to "Risk Sale" in its subsequent e-auction at the risk, cost and consequences of Respondent No. 1. 9 11.10.2006 In spite of the above, the Respondent No. 1 requested MSTC to convey its approval in respect of his bid, as he was ready to deposit security amount immediately and rest of the amount within 15 days of acceptance. 10 25.10.2006 In response to the above letter, MSTC informed that it is holding another e-auction No. 1385 in respect of aforesaid Unit Nos. 4, 5 and 6 of old Utran Power Plant on 16/17.11.2006 and participation of previously defaulted parties (including Respondent No. 1) would be considered at the sole discretion of GSECL.. GSECL also informed the Respondent No. 1 that MSTC is re-e-auctioning the aforesaid Units Nos. 4, 5 and 6. 11 06.03.2007 While taking complete volte-face to its aforesaid communication dated 03.10.2006, MSTC on advice of GSECL, informed the Respondent No. 1 that he is required to make the payment of Rs. 2,30,10,000/(Rs. 2,52,10,000 22,00,000) immediately or within 7 days of the said letter. 4, 5 and 6. 11 06.03.2007 While taking complete volte-face to its aforesaid communication dated 03.10.2006, MSTC on advice of GSECL, informed the Respondent No. 1 that he is required to make the payment of Rs. 2,30,10,000/(Rs. 2,52,10,000 22,00,000) immediately or within 7 days of the said letter. Furthermore, it was also stated that the MSTC has right to accept the offer at any time on or before 14.04.2007 and accordingly, asked the Respondent No. 1 to deposit the security amount within 7 days of receipt of this letter. 12 17.03.2007 In light of the aforesaid communication, MSTC on its own extended the time limit to deposit the security amount for the further period of 7 days. 13 21.03.2007 In response to the aforesaid letter dated 06.03.2007 of MSTC, the Respondent No. 1 addressed a letter to MSTC and informed that it has come to his knowledge that GSECL has till now forfeited Crores of rupees of some parties, therefore Respondent No. 1 requested MSTC to first convey its acceptance, so as to enable him to deposit entire amount. 14 31.03.2007 In response to the aforesaid letter dated 17.03.2007 of MSTC. the Respondent No 1, inter alia reiterated that that it has come to his knowledge that GSECL has till now forfeited 3 Crore of rupees of some Bombay company and that therefore Respondent No. 1 requested MSTC to first convey its acceptance to his proposal for sale so as to enable him to deposit entire money. 15 24.03.2008 To the shock and surprise of the Respondent No 1. instead of conveying its acceptance letter the GSECL informed Respondent No 1 that MSTC has put up tender documents for re-e-auction (3rd time) for sale of maternal/equipments and Unit Nos 4, 5 and 6 on 'as is where is' basis. 16 16.04.2008 During the course of re-auction. the aforesaid Units came to be sold to one M/s. Marine Line Shop Breakers Ltd. for Sale consideration of Rs. 19.25 Crores, at the risk and cost of four former defaulter bidders. 17 09.07.2008 To the utter disregard of rule of fairness, objectivity and transparency and in contravention of general provisions of law of contract. the Respondent No 2 MSTC issued & notice inter alia. stating that they have resorted to subsequent e-auction at the risk, cost and consequences of Respondent No. 1 and made a demand of Rs. 17 09.07.2008 To the utter disregard of rule of fairness, objectivity and transparency and in contravention of general provisions of law of contract. the Respondent No 2 MSTC issued & notice inter alia. stating that they have resorted to subsequent e-auction at the risk, cost and consequences of Respondent No. 1 and made a demand of Rs. 5.95 Crores (Le Rupees 25.21 Crores Rs. 19.25 Crores = Rs. 5.95 Crores). 18 08.08.2008 The Respondent No. 1 addressed & letter to MSTC and strongly objected its erratic behavior and also made a point that he does not want any further dealing with them and requested to refund his EMD of Rs. 22,00,000/- (Rupees Twenty-Two Lakhs Only) or else. convey the unconditional acceptance of his offer. 19 14.10.2010 In furtherance of the above. the Respondent No. 1 addressed a letter to MSTC. requesting to return the EMD amount with 18% interest, as he was informed that the material/equipment lying at Old Utran Power Plant had already been sold to some other party, two years back for a consideration of Rs. 19.25 Crore. 20 13.05.2011 GSECL filed a Special Civil Suit No. 457 of 2011 for the recovery of amount of Rs. 5.95 Crores alongwith interest by way of loss or damage sustained by the GSECL. Note: There was no information of whatsoever nature about the aforesaid suit and the orders passed therein, to the Respondent No. 1 in view of the fact that the summons of the said case were not served upon the Respondent No. 1. 21 13.04.2015 Being aggrieved by the action of the GSECL, the Respondent No. 1 filed a writ petition being SCA No. 6571 of 2015 before this Hon'ble High Court praying for issuance of writ of mandamus for refund of EMD of Rs. 22 Lakhs along with interest. 22 09.08.2017 The aforesaid petition came to be dismissed by this Hon'ble High Court, essentially on the ground of delay and laches and as a result, Special Leave Petition No. 33892/2017 has been preferred by the Respondent No. 1 in Hon'ble Supreme Court, which is pending till date. 22 Lakhs along with interest. 22 09.08.2017 The aforesaid petition came to be dismissed by this Hon'ble High Court, essentially on the ground of delay and laches and as a result, Special Leave Petition No. 33892/2017 has been preferred by the Respondent No. 1 in Hon'ble Supreme Court, which is pending till date. 23 02.04.2018 During the pendency of the aforesaid Special Leave Petition, the GSECL in its counter affidavit for the first time, disclosed the fact of having filed a Special Civil Suit No. 457/2011, which was later on transferred to Commercial Court and renumbered as Commercial Civil Suit No. 111/2016, and also the factum of a decree of Rs. 5.73 Crores having been passed against the Respondent No. 1 vide order dated 08.05.2017 of the learned Commercial Court. 24 16.05.2018 ln view of the above, the Advocate of Respondent No. 1 Shri Shrinivas Shastri addressed an email and sent the aforesaid counter affidavit and the order dated 08.05.2017 and that was how, Respondent No. 1 for the first time learnt about the passing of an ex-parte decree dated 08.05.2017 against him for the amount of Rs. 5.73 Crore (i.e. Rs. 5.95 Crores Rs. 22 Lakhs = Rs. 5.73 Crores) along with the interest. 25 11.07.2018 Consequently, the Respondent No. 1 filed Commercial CMA No. 50 of 2018, before the learned Commercial Court, Vadodara for setting aside of the decree under O. 9 R. 13 of Civil Procedure Code, 1908, alongwith delay condonation application on the following few grounds, amongst others: (i) that the applicant was never served with the summons in the suit wherein impugned judgment and decree was passed ex-parte; (ii) that the applicant had never had any notice or knowledge about the institution or trial of the said suit. (iii) that there has been material irregularities in the service of summons upon the Respondent No. 1, whereby Respondent No. 1 was never served the summons of the said suit. (iv) that the Respondent No. 1 had never ever refused the service of summons in the said suit. (v) that the alleged endorsement made does not contain mandatory particulars for due service of summons as mandated by the law and therefore summons cannot be said to have been served upon the Respondent No. 1. (iv) that the Respondent No. 1 had never ever refused the service of summons in the said suit. (v) that the alleged endorsement made does not contain mandatory particulars for due service of summons as mandated by the law and therefore summons cannot be said to have been served upon the Respondent No. 1. (vi) that the Respondent No. 1, himself has initiated the proceedings before the Hon'ble High Court of Gujarat and Hon'ble Supreme Court against the GSECL and MSTC, and that, therefore, there was no cause for the Respondent No. 1 to not accept the summons of the said suit. 26 10.08.2018 The learned Commercial Court condoned the delay in Commercial CMA No. 50 of 2018 after imposing the cost of Rs. 1,50,000/- on the Respondent No. 1. 27 19.09.2018 Being aggrieved by the order dated 10.08.2018 passed by Ld. Commercial Court, Vadodara, the GSECL preferred a writ petition being SCA No. 14422 of 2018, however this Hon'ble Court was pleased, not to interfere with the said order and accordingly, dismissed the said petition of the GSECL. 28 12.10.2018 Respondent No. 1 filed his rejoinder-affidavit in the aforesaid Commercial CMA No. 50 of 2018, inter alia, stating as follows: "I say that in fact at this juncture, it may kindly be appreciated that when the Applicant herein was undertaking proceedings before the Honourable High Court of Gujarat in respect of the very subject matter against the very opponents, there was no cause for the Applicant not to accept service and under such circumstances also the service of summons as is alleged is completely mischievous and totally bypassed the statutory provisions contained in POSTAL MANUAL Vol. VI published by the Secretary and Director General Post, Government of India. The Chapter No. 6 of the POSTAL MANUAL contain Rules for Registration and Parcel Department. According to Rule 183. Receipts acknowledgements and undelivered articles taken from postman --(1) The Registration Asstt.(RA) or Parcel Asstt. (PA) must take charge of the undelivered registered article from the postman on his return, and should examine its receipt to see that it bears the postman's attestation of addressee's seal or mark. (2) The RA concerned should also see that the postman's No. and cause of non-delivery with date are noted on each article returned. (PA) must take charge of the undelivered registered article from the postman on his return, and should examine its receipt to see that it bears the postman's attestation of addressee's seal or mark. (2) The RA concerned should also see that the postman's No. and cause of non-delivery with date are noted on each article returned. In this case a close examination of the postal cover revealed that the postman has not disclosed his identity on the cover itself by recording postman number under his signature, as is required from him under rules of postal manual. He had even not mentioned the name of the person who refused the service. Moreover, as per (6) of Rule 183, in case an acknowledgement is brought back by the postman unsigned owing to addressee's refusal to signed it, then registration Asstt.(RA) should forward it to the sender with a remark, under the postmaster' signature, explaining, why it is returned without the Signature of the addressee. No such explanation is inscribed on the aforesaid envelop by RA, purported to have contained the summons and paper book of the suit, in an envelope of size 19*9 Cm2, with a minimum postal stamp of Rs. 45.00." 29 20.12.2018 Thereafter, the matter proceeded before the learned Commercial Court and after hearing both the parties, the learned Commercial Court, Vadodara was pleased to allow the said Commercial CMA No. 50/2018 preferred under O. 9 R. 13 of the Code of Civil Procedure filed by the Respondent No. 1 and accordingly, an ex-parte judgment and decree dated 08.05.2017 passed in favour of the GSECL in Commercial Civil Suit No. 111 of 2016 was set aside and the suit was ordered to be restored on the file for further proceedings in accordance with law. 30 16.01.2019 Being aggrieved from the aforesaid order dated 20.12.2018, the GSEL has preferred the captioned writ petition under Article 226/227 of the Constitution of India. 31 25.01.2019 In the above matter, this Hon'ble Court directed the issuance of notice to the respondents herein, making it returnable on 13.02.2019 and by way of an ad-interim relief, was pleased to stay the operation of the aforesaid order dated 20.12.2018 passed in Civil Misc. Application No. 50 of 2018 of the respondent No. 1. 4. Thus, it appears that summons was issued by the Commercial Court to the defendant No. 1 by registered post. Application No. 50 of 2018 of the respondent No. 1. 4. Thus, it appears that summons was issued by the Commercial Court to the defendant No. 1 by registered post. It is not in dispute that the defendant No. 1 is residing outside the jurisdiction of the Commercial Court. In fact, the defendant No. 1 is residing at Meerut, State of U.P. The defendant No. 1 is a proprietor of a proprietary concern running in the name of M/s. Vipulkumar Jain and Sons. The summons issued by the Commercial Court to the defendant No. 1 by registered post was received back by the Commercial Court with an endorsement of the postal authority as "refused". It is also not in dispute that the summons was sent at the last known address of the defendant No. 1. After the summons was received back with the aforesaid endorsement, the Commercial Court passed an order to proceed with the Commercial Suit ex parte. The Commercial Court framed the following issues: "1. Whether the plaintiff proves that the defendant No. 1 has participated in e-auction for the purchase of the equipments as alleged by the plaintiff for a sum of Rs. 25,21,00,000? 2. Whether the plaintiff proves that the defendant No. 1 requested for extension for deposit of e-auction money? 3. Whether the plaintiff proves that the defendant No. 1 cannot fulfill the promise of depositing the e-auction amount within extended time? 4. Whether the plaintiff proves that the equipments were e-auctioned again for & sum of Rs. 19,25,10,001/to M/s. Marine Lines Ship Breakers Pvt. Ltd., at the risk and costs of the defendant No. 1? 5. Whether the plaintiff proves that the plaintiff is entitled to recover Rs. 5,95,84,999/being the differential price of the e-auction? 6. Whether the plaintiff proves that the plaintiff is entitled for the interest, if yes, then at what rate and on what amount? 7. What order and decree?" 5. The issues framed by the Commercial Court referred to above came to be answered as under: "1. In affirmative. 2. In affirmative 3. In affirmative 4. In affirmative. 5. Partly in affirmative. 6. As per final order. 7. As per final order." 6. In the Commercial suit preferred by the original plaintiff, the relief prayed for is as under: "(9) the defendant no. 1 be ordered and the amount mentioned in para-4 i.e. Rs. In affirmative. 2. In affirmative 3. In affirmative 4. In affirmative. 5. Partly in affirmative. 6. As per final order. 7. As per final order." 6. In the Commercial suit preferred by the original plaintiff, the relief prayed for is as under: "(9) the defendant no. 1 be ordered and the amount mentioned in para-4 i.e. Rs. 5,95,89,999/- + interest of 12.75% from the date of filing of the suit till realization with cost of the suit be recovered from the movable and immovable properties of defendant no. 1 and decree may be passed in that effect. That such further and other relief may be granted to the plaintiff as the cast may require as this Hon'ble Court think fit, reasonable and proper." 7. The Commercial Court, Vadodara, ultimately, allowed the suit in part. The operative part of the order reads thus: ":ORDER: The suit of the plaintiff bearing Commercial Civil Suit No. 111/2016 is decreed partly. The plaintiff do recover a sum of Rs. 5,73,89,999/- (Rupees Five Crores Seventy - three lacs Eighty nine Thousand Nine hundred Ninety Nine only) from the defendant no. 1 along with interest thereon at the rate of 12% p.a. From the date of installation of suit till decree and at the rate of 9% p.a. from the date of decree till realization of the amount. The defendant no. 1 shall pay the cost of this litigation to the plaintiff. Decree to be drawn accordingly." 8. The defendant No. 1 learnt about the ex parte order passed by the Commercial Court, and in such circumstances, thought fit to prefer the Commercial Civil Miscellaneous Application No. 50 of 2018 under the provisions of Order IX Rule 13 of the C.P.C. praying to quash and set aside the ex parte order. In the Commercial Civil Miscellaneous Application preferred by the original defendant No. 1, the following has been stated: "a. That the applicant herein was never served with the summons in the said suit wherein the ID was passed. In the Commercial Civil Miscellaneous Application preferred by the original defendant No. 1, the following has been stated: "a. That the applicant herein was never served with the summons in the said suit wherein the ID was passed. b. That during the course of the conduct of the entire said suit, the applicant herein had never had any notice or knowledge about the institution or trial of the Said Suit; c. That in view of the summons having not been served upon the Applicant herein ever, the [1] and ID as have been passed is ex parte; d. That the Opponents herein have indulged into the material irregularity in the Service of Summons on the applicant whereby have never served the summons of the Said Suit on the applicant; e. That the Opponents have played serious mischief in the service of summons in the Said Suit on this Honourable Court; f. That the mandatory provisions for service of 'summons on the defendant have not been complied with and therefore the service of summons which has been caused is not proper and legal and therefore the alleged service cannot be termed as a Service as the same is not proper and legal and therefore when the entire proceedings of the Said Suit have been conducted on premises of improper and not legal observation about service, the same is capable to confirm that the service is not duly effectuated; g. That it was mandatory in view of the clear provisions of law in all cases other than where the defendant has signed the acknowledgment, a inquiry whether the summons has been duly served or not is mandatory to be carried out prior to the declaration of the services of summons, however from the records of the Said Suit, no such inquiry has been carried out in the Said Suit and therefore the mention made in the record and IJ that the summons have been duly served is also not proper and legal and therefore also the said mention in the IJ and record is also against the law; h. That further service of the summons on the defendant was also required under such circumstances in accordance law and therefore when no such mandatory provision as is provided in the law is caused and carried out, the summons cannot be said to have been duly served and therefore the observation as is made in the records of the Said Suit and IJ is not proper and legal; I. That the proper and due compliance of the provisions pertaining for the service of summons to have been duly effectuated has not been caused and therefore also the summons can never ever be said to have been served upon with the summons; j. That the applicant herein had never ever refused the service of summons in the Said Suit as the applicant herein always respects and has regard for the August Majesty of the Honourable Courts and judicial authorities; k. That if the alleged endorsement on the Exh. 12 of the Said Suit is taken into consideration, then from the said endorsement, it is not mentioned that the applicant herein had refused the service the summons of the Said Suit and therefore under such circumstances the alleged endorsement cannot be taken into consideration as the said endorsement is false; l. That from the alleged endorsement as is made, the material mandatory particulars are not mentioned for the due service of summons as mandated by law end. therefore also the summons cannot be said to have been served 'upon the applicant; m. That even otherwise for the factual submissions as shall be made on the basis of the record as regard the alleged endorsement at the time of hearing of the present application, the summons cannot be considered to have been served upon the applicant and therefore also the IJ and ID may kindly be set aside; n. That the a alleged endorsement could not have been relied upon by the Honourable Court without holding the proper and due inquiry before declaring the summons to have been duly served; o. That in view of the fact that the summons of the present suit were never served upon the applicant herein, the applicant herein was prevented on account of prohibitive circumstance no knowledge about the service of summons having been caused on the applicant; p. That in view of the fact that the applicant herein himself has initiated the proceedings before the Honourable High Court of Gujarat and the Honourable Supreme Court of India against the very opponents herein for the very Tender, there was no cause for the applicant to not to accept the summons of the Said Suit; q. That when the applicant herein had immediately upon the know edge of the IJ and ID filed the present application before this Honourable Court promptly, there was no cause for the applicant to not to remain present in the said suit and deemed end the Said Suit; r. That the Honourable Court while passing the IJ and ID in the said suit has failed to appreciate that the Honourable Court was suffering from inherent lack of statutory jurisdiction for entertaining, trying the said suit and the said suit was not maintainable at all before the Honorable Court in view of the dear arbitration agreement between the parties requiring the parties to take recourse to arbitration in case of any dispute; s. That the Honourable Court while passing the IJ and ID has failed led to appreciate that the Suit and reliefs as were sought therein as were hopelessly barred by law including and not limited to the Limitation Act, 1963; t. That the Opponents herein have in collusion have misrepresented the facts before this Honorable Court and have got the IJ and ID passed by this Honourable Court in collusion; u. That the applicant herein has an exceptional case before this Honourable Court and If the applicant Is afforded an opportunity to defend, the applicant herein then the applicant herein Is likely to succeed and under such circumstances the applicant in view of the cogent strength in the case of the applicant is also genuinely entitled to be afforded to defend the claim by setting aside the IJ and ID since no contract was ever concluded between the applicant and the opponents; v. That in view of the ID having been passed without the service of summons having been caused, the IJ and ID have been passed in violation of principles of natural justice and therefore also the IJ and ID may kindly be set aside; w. That the applicant shall suffer serious inconvenience, loss and would be required to suffer the consequence of the ID : no fault on the part of the applicant; x. That the balance of convenience lies in favour of the applicant as also the irreparable loss shall be caused to the applicant and in view of the fact that the equity also lies in favour of the applicant, the ID may kindly be set aside; y. For further grounds and submissions as shall be canvassed during the course of the hearing of the present application, the IJ and ID are required to be set aside." 9. The application preferred by the defendant No. 1 under Order IX Rule 13 of the C.P.C. came to be vehemently opposed by the original plaintiff by filing reply. In the reply filed by the original plaintiff, the stance of the original plaintiff is as under: "(f) The suit No. 457/11 was instituted on 13-05-2011 before the Court of principal Civil Judge (S.D.) Vadodara and summons was served to defendants. This suit came to be transferred vide order dated 02-08-2016 upon constitution of the commercial court at Vadodara and it was numbered as com-civil suit no. 111 of 2016. Hon'ble Commercial Court issued summons to defendant no. 1 (Present applicant) again according to Order - 5 Rule - 9 CPC Provision by registered AD post. The cover constraining the summons and paper book of the suit which was received back by the court with an endorsement. Purporting to have been made by a postal Employee that the defendant had "refused" to take. The said summons was sent to the defendant no. 1 on the last known correct address but the defendant No. 1 refused to accept envelope containing the summons. It is specified in Sub rule - 3 when tendered or transmitted to him the Court issuing the summons shall declare that the summons had been duly served on the defendant and accordingly CPC Order 9 Rule 6(1) a when summons duly served it is proved hence Hon'ble Court proceeded the defendant no. 1 as ex parte on 02-09-2016, though with malafide the court in his present petition that summons was ever served upon the defendant no. 1 (present) applicant in respect of the said suit. Applicant has suppressed the correct fact and untruth averment has been made in the present petition. (g) The Hon'ble Court had framed the issues and after oral and documentary Evidence of the plaintiff Hon'ble Court has decreed the suit in favourable of plaintiff and against the defendant no. 1 (present) applicant in respect of the said suit. Applicant has suppressed the correct fact and untruth averment has been made in the present petition. (g) The Hon'ble Court had framed the issues and after oral and documentary Evidence of the plaintiff Hon'ble Court has decreed the suit in favourable of plaintiff and against the defendant no. 1 i.e. present applicant on 08-05-2017: (h) The decree holder i.e. present opponent has filed execution petition against present applicant No: 06/2018 end notice was served on applicant and applicant had filed VP of same advocate on 12-06-2018 and next date i.e. on 11-07-2018 filed declaration pursis that JD is residing out of Jurisdiction of court and no properties lies with jurisdiction court but not declared in this pursis that he has filed present CMA for setting aside ex-parte decree. (i) Now The present applicant has not filed and appeal. (j) Applicant has filed present petition under Order -09 Rule-13 of CPC for setting aside ex parte decree which has limited scope. (k) This Hon'ble court is not sitting as appealable Judge to review the Judgment anti decreed passed by itself. (l) According to Order-9 Rule-13 your Hon'ble court has to see from record of the suit whether due process of law summons was served to the defendant no. 1 or not or that he was prevented by any sufficient cause from appearing? (m) Looking to the Rojkam of Com. Civil suit 111/2016 The Hon'ble commercial court record shows that' the summons of the suit sent by registered post by Hon'ble Court cover containing the summons and paper book of the suit was received back with the remarks of the postal Authority as "REFUSED" The said summons was sent at the last known correct address of the defendant no. 1 but the defendant refused to accept the envelope containing the summons hence summons was duly served to defendant no. 1 in spite of this fact defendant was not appeared and defendant the plaint and claim hence CPC Order - 6 Hon'ble Court has proceeded defendant no. 1 as ex-parte on 02-09-2016, when service of summons by registered post returned with endorsement of "refusal" then there is no illegality in passing the ex-parte decree hence applicant's application for setting aside ex parte decree along with delay be dismissed with cost. 1 as ex-parte on 02-09-2016, when service of summons by registered post returned with endorsement of "refusal" then there is no illegality in passing the ex-parte decree hence applicant's application for setting aside ex parte decree along with delay be dismissed with cost. (n) Applicant intestinally suppressed material fact that he has not served the summons by the Hon'ble Court he has made false statement on the court. He has not come with cleans hands and suppressed materials facts after reading of judgment and also hence applicant application is liable to be dismissed with cost. (o) This Hon'ble Court is not the appealable Judge for its own judgment to review the judgment as applicant making allegation regarding jurisdiction, maintainability bar of Limitation. The applicant petition is not the appeal before appellate court it is under CPC Order -9 Rule - 13 which shows only summons was served to the defendant or not that has only to consider and nothing. (p) The applicant has not med this petition within 30 days from the date of judgment i.e. 8-5-2017. (q) There is a delay of approximately 395 days but applicant showing delay of 83 days is totally wrong and them the date of Judgment till filling of this petition applicant has not shown any sufficient cause and what circumstances he has prevented for making this application beyond limitation. (6) The present applicant very well knows that he had refused to take summons cover. The applicant at relevant time had contacted one Advocate Shri DP. Agrawal Delhi to watch the case and said advocated also visited when suit is going on at office of GSECL for settlement he had also informed orally that they will engage local Advocate in the said suit. (7) It is the false and untruth statement of the applicant that he has filed special leave' petition No. 33892 of 2017 before Hon'ble S.C. against Sp. Civil Application No. 5454 of 2013 old an New No. 6571115 before Hon'ble Guj. High Court for Refund of EMD of Rs. 22 lacs which was dismissed on 9-8-2017 and in S C opponent filed counter affidavit dated 22-03-2017 on 2-4-2017 where in opponent GSECL mentioned about com. civil suit No. 111-2016 that Ex parte Judgment obtained on 8-5-2017 and had become the knowledge. High Court for Refund of EMD of Rs. 22 lacs which was dismissed on 9-8-2017 and in S C opponent filed counter affidavit dated 22-03-2017 on 2-4-2017 where in opponent GSECL mentioned about com. civil suit No. 111-2016 that Ex parte Judgment obtained on 8-5-2017 and had become the knowledge. The present applicant very well known when he has returned the register cover of commercial court summons with refused in the year 2016 but he is felling lie & suppressing material facts. (8) When opponent files execution petition against applicant on 11-4-2018 and notice was served to applicant by Hon'ble Court to remain present on 12-6-2018 applicant received notice before 12-06-2018 and Third Party Shri I N Bhatt has applied for certified copy of judgment and decree and received on 28-6-2018 though this fact is not mentioned when applicant filed VP on 12-6-2018 in execution petition and thereafter in declaration pursis filed in execution petition on 11-7-2018 that they have filed petition on 11-7-2018 under Order-9, Rule - 13 this fact has not mentioned. (9) Now in this petition and decided delay condonation application filed along with has made allegation that " applicant herein was never served with the summons in the suit & decree was passed Now look at Exh-43 Judgment page, 6, 7 para 3 of finding of Hon'ble court that summons of the suit to defendant no. 1 was issued by registered AD Post but the cover containing the summons and paper book of the suit issued to defendant no. 1 was received back with remark of the postal Authority as "Refused" The said summons was sent at the last known correct address of the defendant no. 1 was issued by registered AD Post but the cover containing the summons and paper book of the suit issued to defendant no. 1 was received back with remark of the postal Authority as "Refused" The said summons was sent at the last known correct address of the defendant no. 1 but the defendant refused to accept the envelope containing the summons and refusal is the good service in the eyes of law according to CPC Order-S Rule-9 delivery of summons by court says that "Summons is received back by the court with an endorsement purporting to have been made by a postal employee that the defendant or his agent had "Refused" to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub rule (3) when tendered or transmitted to him, the court issuing the summons shall declare that the summons had been duly served on the defendant and according to law Hon'ble Court has declared that summons had been duly served on the defendant no. 1 and according civil procedure Order-9 Rule-6 Hon'ble court passed the order that the suit be heard Ex-parte hence there is no illegality in passing the ex parte decree. In this case oral and documentary evidence led by plaintiff issues also framed and then judgment is pronounced on 8-5-2017 is binding to the present applicant. (10) After filling of execution petition and appeared through advocate thereafter the present applicant has filed this petition on 11-7-2018 under Order-9 Rule-13 of CPC for setting aside ex parte decree along with delay condone application from the date of Judgment dated 8-5-2017 filing this petition on 11-7-2018 the approximately delay is one year one month i.e. 395 days delay in preferring the present petition on the ground that no notice or summons was ever served upon the applicant in respect of the said commercial suit no 111/2016 where in Judgment and decree was passed. Now applicant cannot claim and given the benefit of Order-9 Rule - 13 of CPC because Hon'ble court has duly serve the summons by registered post according to Order-9, Rules-9 of CPC to the defendant no. Now applicant cannot claim and given the benefit of Order-9 Rule - 13 of CPC because Hon'ble court has duly serve the summons by registered post according to Order-9, Rules-9 of CPC to the defendant no. 1 is on applicant and summons is received back by the court with an endorsement by a postal employee that defendant had "'Refused" to take delivery of the postal article containing the summons and it was duly served on defendant No. 1. Order-9 Rule-13 further says provided further that no court shall set aside decree passed expert merely on the ground that there has been an irregularity in the service of summons and no illegibility in passing the ex parte decree. Applicant case is that he ever served the summons or notice of the suit without reading judgment of the suit it is false end illegal statement of the applicant misleading the court. (11) Looking to above reply and facts the petition of applicant under Order-9, Rule 13 is not maintainable under Order-9 Rule-13, hence be dismissed.". 10. The Commercial Court, ultimately, thought fit to quash and set aside the ex parte judgment and decree holding as under: "5. It is considered that, as per the Rojkam of the case, the summons of the suit was sent by registered post in a sealed cover containing the summons and paper-book of the suit, however, it was received back with the endorsement of the Postal Authority as 'Refused'. The said summons was sent at the last known address of the defendant No. 1 but the defendant No. 1 refused to accept the envelope. Thus, when service of summons by registered post returned with endorsement of 'Refused' then there is no illegality in passing the ex parte decree, hence, the applicant's application for setting aside ex parte decree along with delay be dismissed with costs. 6. As against the reply of the opponent No. 1, the Applicant has filed rejoinder vide Exh. 11 denying the contentions raised in the reply and submitted that serious mischief and illegality in the process of service of summons and the fraud having been played in the present proceedings. 6. As against the reply of the opponent No. 1, the Applicant has filed rejoinder vide Exh. 11 denying the contentions raised in the reply and submitted that serious mischief and illegality in the process of service of summons and the fraud having been played in the present proceedings. It is in the interest of justice that a fair opportunity to defend the rights is granted to the Applicant as the opponents have obtained decree by playing mischief right from illegality in the service of summons upto the stage of presenting the facts before the Court and therefore, under these circumstances the ex parte decree as is passed in the Commercial Civil Suit No. 111 of 2016 may kindly be set aside. 7. Having heard the Ld. Advocates appearing for both the sides and perused the record. Ld. advocate for the Applicant has submitted that the summons of the suit were not served upon the Applicant and the suit therefore, proceeded ex parte on 02/09/2017. Ld. Advocate for the Applicant Ma' submitted that the Applicant was not aware about the passing of the judgment and decree by this Court on 08/05/2017 Ld. Advocate for the Applicant further submitted that a Writ petition was filed by the Applicant before the Hon'ble High Court which was dismissed on 09/08/2017 against which, Special Leave Petition was filed before the Hon'ble Supreme Court and in the course of such proceedings, the Courter affidavits were filed by the opponents on 22/03/2017 and 02/04/2017 in which reference was made to the about the Commercial Civil Suit No. 111 of 2016 having been filed by the opponents and an ex parte judgment against the Applicant having been passed on 08/05/2017. Ld. Advocate for the Applicant further submitted that the opponents have indulged into the material irregularity in the service of Summons on the Applicant whereby have never served the summons of the said suit on the Applicant and the Applicant had never ever refused the service of summons in the said suit. Ld. Advocate for the Applicant further submitted that from the alleged endorsement as is made, the material mandatory particulars are not mentioned for the due service of summons as mandated by the law and therefore also, the summons cannot be said to have been served upon the Applicant. In support of his submissions, ld. Ld. Advocate for the Applicant further submitted that from the alleged endorsement as is made, the material mandatory particulars are not mentioned for the due service of summons as mandated by the law and therefore also, the summons cannot be said to have been served upon the Applicant. In support of his submissions, ld. Advocate for the applicant has submitted (1) a copy of leaflet of Order V Rule 17 and 21 A of the Code of Civil Procedure, 1908 (2) decision of the Hon'ble High Court of Chhattisgarh at Bilaspur of the case of Vijay Prasad Chaudhary V/s. Mamta Devi & Another, reported in (3) decision of Hon'ble High Court of Calcutta of the case of G. Artherton and Company (P) Ltd. V/s. Shri Abhijit Bose and Anr. reported in and (4) a copy of Postal Rule No. 183. 8. Per contra, Ld. Advocate appearing for the opponent No. vehemently submitted that the summons of the suit was sent registered post in a sealed cover containing the summons and paper-book of the suit, however, it was received back with the endorsement of the Postal Authority as 'Refused'. Ld. Advocate for the opponent further submitted that the said summons were sent at the last known address of the defendant No. 1 but the defendant No. 1 refused to accept the envelope. Thus, when service of summons by registered post returned with endorsement of 'Refused' then there is no illegality in passing the ex parte decree, therefore, he prayed that the applicant's application for setting aside ex parte decree requires to be rejected. In support of his submissions, Ld. Advocate for the opponent No. 1 has placed reliance on the decision of Hon'ble Delhi High Court in the case of Sweety Gupta V/s. Neety Gupta & Ors. reported in FAO (OS) 108/2016 (2) decision of Hon'ble Supreme Court in the case of P.T. Thomas V/s. Thomas Job, reported in Appeal (Civil) 4677 of 2005 (arising out of S.L.P. (C) No. 20179/2003). 9. So far as the Applicant's case is concerned, it appears that after the ex parte decree passed by my Ld. Predecessor, the applicant came to know of aforesaid fact only on the basis of the declaration made by the opponents in the proceedings before the Hon'ble Supreme Court. 9. So far as the Applicant's case is concerned, it appears that after the ex parte decree passed by my Ld. Predecessor, the applicant came to know of aforesaid fact only on the basis of the declaration made by the opponents in the proceedings before the Hon'ble Supreme Court. On being appraised of the said fact, the applicant reached to this Court and filed an application seeking to set aside the ex parte decree coupled with relief to condone the delay. This Court, after hearing the parties concerned, condoned the delay subject to cost of Rs. 1,50,000/-. However, the said order has been assailed by the opponent before the Hon'ble High Court of Gujarat by preferring the R/Special Civil Application No. 14422 of 2018. The Hon'ble High Court of Gujarat, (Coram : Honourable Mr. Justice Akil Kureshi and Honourable Mr. Justice B.N. Karia) by its oral order dated 19/09/2018 has been pleased to reject the Special Civil Application and confirmed the Order passed by this Court. 10. Reverting back to the issue so far as present application is concerned, the said application has been opposed by the opponent No. 1 by assailing on the basis that the Applicant was duly served with the process by Registered Post AD and on the basis of same, the ex parte decree came to be passed. However, the defence advanced by the Applicant stating that, while relying on the endorsement of the postal officer, no witness in support thereof has been examined so as to bring the truth and veracity of the Signature of the receiving party or person or the name on whom process having been duly affected. Though the Ld. Advocate for the opponent No. 1 has heavily relied/upon the decision of Hon'ble Delhi High Court in the case of Sweety Gupta (supra) stating and contending that as per the provision of Order 9 Rule 13 and also held by the Hon'ble Supreme Court once there is an endorsement of 'Refusal' a presumption against the person sought to be served can be drawn of process having been duly served. However, considering the facts of the case on hand, process came to be affected on the proprietary firm of Vipul Kumar Jain and Sons, but it is not defined as to who has refused the process. However, considering the facts of the case on hand, process came to be affected on the proprietary firm of Vipul Kumar Jain and Sons, but it is not defined as to who has refused the process. Simply because an endorsement of 'Refused' has been made by the postal officer without having name suggested by the refusing party is no ground to draw adverse presumption particularly, considering the factum that several simultaneous litigations are going on between the parties, not only up to the Hon'ble High Court of Gujarat, but up to the Hon'ble Supreme Court of India, therefore, under that circumstances, the stand taken by the opponent No. 1 do not seeks to be palatable and proper, even otherwise, it cannot be accepted that a person who has been litigating rather battling for its rights since long before the appropriate forum, how can he refuse the process. 11. In view of the aforesaid facts and circumstances and without much delving the merits and only considering the fact that no one should be deprived of its legitimate rights without granting opportunity of being heard and further considering the fact that any such claim should not be rejected on the technical ground as held by the Hon'ble High Courts time and again and also held by the Hon'ble Apex Court that the party should not be made to suffer because of the technicalities or by inevitable circumstances which beyond the control of the party." 11. Being dissatisfied with the impugned order passed by the Commercial Court, the original plaintiff is here before this Court with the present application. SUBMISSIONS ON BEHALF OF THE ORIGINAL PLAINTIFF: 12. Mr. Dipak R. Dave, the learned counsel appearing for the original plaintiff vehemently submitted that the Commercial Court committed a serious error in allowing the application preferred by the defendant No. 1 and thereby quashing and setting aside the ex parte decree. Mr. Dave would submit that the stance of the defendant No. 1 is a dishonest and dishonest litigant is not entitled to any discretionary relief from the Court of law. According to Mr. Dave, the service of summons stood completed in terms of the statutory provisions of the C.P.C. by the refusal of the defendant to accept the summons. Mr. Mr. Dave would submit that the stance of the defendant No. 1 is a dishonest and dishonest litigant is not entitled to any discretionary relief from the Court of law. According to Mr. Dave, the service of summons stood completed in terms of the statutory provisions of the C.P.C. by the refusal of the defendant to accept the summons. Mr. Dave would submit that in order to determine the application under Order IX, Rule 13 of the CPC, the test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. According to Mr. Dave, in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897, there is a presumption that the addressee has received the letter sent by registered post. Mr. Dave would submit that such presumption undoubtedly is rebuttable, but the same cannot be rebutted or could not be said to have been rebutted by merely saying that the defendant had not received any such summons. The presumption is rebuttable on a consideration of evidence of impeccable character. Mr. Dave would submit that in the case on hand, all that has been said by the defendant is that he had never refused to accept the summons as no one had come to deliver the summons. Mr. Dave would submit that the endorsement on the cover containing the summons dispatched by the Commercial Court is one of refusal. There was no good reason for the postal authority to apply such a stamp or endorsement on the cover. 13. Mr. Dave would submit that it is true that the expression "sufficient cause" should be liberally constrained with a view to do substantial justice. However, in the case on hand, the defendant is guilty of negligence, inaction and also guilty of making a false statement before the court on oath. According to Mr. Dave, mala fide is imputable to the defendant. 14. Mr. Dave submitted that in the instant case, the defendant failed to discharge the burden as he failed to place any material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. According to Mr. According to Mr. Dave, mala fide is imputable to the defendant. 14. Mr. Dave submitted that in the instant case, the defendant failed to discharge the burden as he failed to place any material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. According to Mr. Dave, the finding recorded by the Court below that as the process came to be effected upon the proprietary firm namely M/s. Vipulkumar Jain and Sons, it is not clear as to who had actually refused to accept the summons could be termed as perverse. According to Mr. Dave, a proprietary firm is not a legal entity nor a company incorporated under the Companies Act or a partnership firm. A proprietor and the proprietary concern are synonymous. The endorsement of refusal is sufficient enough to draw a presumption that the defendant declined to accept the summons. 15. Mr. Dave submitted that the defendant had full knowledge as regards the institution of the suit by the plaintiff. According to Mr. Dave, having learnt about the institution of the suit, the defendant had visited the office of the plaintiff for the purpose of negotiation. In such circumstances, according to Mr. Dave, the assertion on the part of the defendant that he came to know about the institution of the suit only after going through the memo of the S.L.P. is absolutely false. Mr. Dave submitted that while opposing the application preferred by the defendant under Order IX Rule 13, it has been stated on oath in the reply filed on behalf of the plaintiff that the defendant having learnt about the institution of the suit had asked his lawyer namely Shri D.P. Agrawal to keep a watch on the proceedings. Mr. Dave pointed out that it has been stated on oath that Shri D.P. Agrawal had visited the office of the plaintiff for the purpose of settlement. According to Mr. Dave, all the aforesaid facts would go to show that the stance of the defendant is dishonest and a dishonest litigant is not entitled to any discretionary relief from any Court of law. 16. In such circumstances referred to above, Mr. Dave prays that there being merit in this petition, the same be allowed and the impugned order be quashed. 17. Mr. 16. In such circumstances referred to above, Mr. Dave prays that there being merit in this petition, the same be allowed and the impugned order be quashed. 17. Mr. Dave, in support of his submissions, has placed reliance on the following decisions: [1] Parimal vs. Veena @ Bharti [ 2011 (3) SCC 545 ] [2] Andhra Bank vs. Bhanu Engineering Corporation [ (2005) 10 SCC 593 ] [3] GMG Engineering Industries & Ors vs. ISSA Green Power Solution & Ors [ 2015 (15) SCC 659 ] [4] Ramesh and others vs. Ratnakar Bank Ltd. [ (2006) 12 SCC 111 ] SUBMISSIONS ON BEHALF OF THE DEFENDANT: 18. Mr. Kamal Trivedi, the learned senior counsel appearing for the defendant has vehemently opposed this application. Mr. Trivedi would submit that no error, not to speak of any error of law could be said to have been committed by the Court below in passing the impugned order. According to Mr. Trivedi, after due consideration of all the relevant aspect of the matter, the Court below thought fit to exercise its discretion in favour of the defendant and such exercise of discretion may not be disturbed or interfered with by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. Mr. Trivedi would submit that any view of the matter when the defendant resides outside the territorial jurisdiction of the Court in which the suit is instituted, the Court cannot issue summons by registered post with acknowledgment due. Mr. Trivedi submitted that the reason why the registered post service is not permissible when the defendant resides outside the jurisdiction is that where the defendant resides far away outside the jurisdiction of the Court, it would be unjust to raise such a presumption. 19. Mr. Trivedi submitted that the language of sub-rule (4) of Order V of the C.P.C. is absolute clear and the only interpretation which could be given to the sub-Rule(4) is that when the defendant resides outside the jurisdiction, he can only be served through speed post, courier service, fax message or e-mail, but, not by registered post acknowledgment due. 20. According to Mr. Trivedi, in sub-rule (4), it has been mentioned that the provisions of Rule 21 shall not apply when the service is sought to be effected by any of the methods provided in sub-rule (3) except the registered post acknowledgment due. Mr. 20. According to Mr. Trivedi, in sub-rule (4), it has been mentioned that the provisions of Rule 21 shall not apply when the service is sought to be effected by any of the methods provided in sub-rule (3) except the registered post acknowledgment due. Mr. Trivedi would submit that the Court, while sending the summons through the speed post, courier service, fax message or e-mail, is not required to send the summons to the Court in whose jurisdiction the defendant resides. The summons can be sent directly to the defendant without the intervention of the other Court. Mr. Trivedi, in support of his submissions, has placed strong reliance on a decision of the Himachal Pradesh High Court in the case of Aar Kay Traders vs. Satish Electronics reported in 2008 (3) Shimla Law Case 44. 21. Mr. Trivedi submitted that in the case on hand, the postman has not been examined by the plaintiff. According to Mr. Trivedi, once his client stated on oath that he did not receive the summons allegedly sent by post, the same would prevail over the postal remarks that it was "refused" unless the postman was examined. Mr. Trivedi, in support of his submission, has placed reliance on a decision of the Supreme Court in the case of A. Rama Rao and others vs. Raghu Nath Patnaik and others reported in (2007) 9 SCC 521 . Mr. Trivedi also placed reliance on a decision of the Bombay High Court in the case of B.S. Mahajan vs. Chyapsey R. Mistry reported in (1988) 3 Bom CR 535. 22. In the last, Mr. Trivedi submitted that the impugned order passed by the Commercial Court in no manner suffers from any error of jurisdiction or material irregularity in exercise of jurisdiction. In such circumstances, this Court may not disturb the order in exercise of jurisdiction under Article 227 of the Constitution of India. Mr. Trivedi laid much emphasis on the fact that the ex parte money decree is of more than Rupees Five Crore with interest. In such circumstances, one opportunity may be given to the defendant to contest the suit on merits. 23. In such circumstances referred to above, Mr. Trivedi prays that as there is no merit in this petition, the same be rejected. ANALYSIS: 24. In such circumstances, one opportunity may be given to the defendant to contest the suit on merits. 23. In such circumstances referred to above, Mr. Trivedi prays that as there is no merit in this petition, the same be rejected. ANALYSIS: 24. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for our consideration is whether the Court below committed any error in passing the impugned order. 25. Before adverting to the rival submissions canvassed on either side, we should look into the relevant provisions of the C.P.C. governing the subject. 26. Order V of the C.P.C. lays down the procedure for issue and service of summons. Order V Rule 9 is relevant for our purpose. Order V Rule 9 came to be substituted by the Amendment Act, 2002 (w.e.f. 1-7-2002). Order V Rule 9 reads thus: "R. 9. Delivery of summons by Court (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court. (2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him in such manner as the Court may direct. (3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court: Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff. (4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of rule 21 shall not apply. (5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted 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, pre-paid 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 issue of summons. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1).]" 27. Order V Rule 17 prescribes the procedure when the defendant refuses to accept service, or cannot be found. Order V Rule 17 reads thus: "R. 17. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1).]" 27. Order V Rule 17 prescribes the procedure when the defendant refuses to accept service, or cannot be found. Order V Rule 17 reads thus: "R. 17. Procedure when defendant refuses to accept service, or cannot be found - Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, [who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time] and there is no agent empowered to accept service of the summons on his behalf, nor any other person on 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 affixed." 28. Order V Rule 19 provides for the examination of the serving officer. It reads thus: "R. 19. 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 inquiry 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." 29. Order V Rule 21 provides for the service of summons where the defendant resides within the jurisdiction of another Court. It reads thus: "R. 21. Order V Rule 21 provides for the service of summons where the defendant resides within the jurisdiction of another Court. It reads thus: "R. 21. Service of summons where defendant resides within jurisdiction of another Court - A summons may be sent by the Court by which it is issued, whether within or without the State, either by one of its officers a [or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court] to any Court (not being the High Court) having jurisdiction in the place where the defendant resides." 30. We shall now look into Section 27 of the General Clauses Act, 1897. Section 27 of the Act, 1897 provides for the meaning of service by post. Section 27 reads thus: "27. Meaning of service by post - Where any (Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." 31. We shall now look into Section 114 of the Indian Evidence Act, 1872. Under Section 114, the Court may presume existence of certain facts which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business. Section 114 reads thus; "114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Section 114 reads thus; "114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume- (a) that a man is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; (b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars; (c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration. (d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence; (e) that judicial and official acts have been regularly performed; (f) that the common course of business has been followed in particular cases; (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; (h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; (i) that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. But the Court shall also have regard to such facts as the following in considering whether such maxims do or do not apply to the particular case before it:- As to illustration (a).- A shopkeeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business; As to illustration (b) A crime is committed by several persons. A, B and C, three of the criminals, are captured on the sport and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable. As to illustration (c) A, the drawer of a bill of exchange, was a man of business. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable. As to illustration (c) A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was young and ignorant person, completely under A's influence. As to illustration (d).-It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course As to illustration (e).-A judicial act, the regularity of which is in question, was performed under exceptional circumstances; As to illustration (f) - The question is, whether a letter was received: It is shown to have been posted, but the usual course of the post was interrupted by disturbance; As to illustration (g).-A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family; As to illustration (h).-a man refuses to answer a question which he is not compelled law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked; As to illustration (i).-A bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it." 32. So far as the aforenoted illustrations to Section 114 of the Evidence Act are concerned, the relevant illustration would be (f). Section 114(f) reads thus: "As to illustration (f) - The question is, whether a letter was received: It is shown to have been posted, but the usual course of the post was interrupted by disturbance; 33. The provision envisages the law regarding presumption of certain facts. One of the earliest cases which recognized the concept of presumption of service by registered post under Section 114 of the Act is the case of Harihar Banerjee vs. Ramshashi Roy reported in AIR 1918 Privy Council 102. In this regard, the Court held that there can be a presumption of receipt of a letter sent under postal certificate in view of the provisions of Section 114(f) of the Act. In this regard, the Court held that there can be a presumption of receipt of a letter sent under postal certificate in view of the provisions of Section 114(f) of the Act. We quote the relevant observations of Lord Atkinson, speaking for the Bench, as under: "If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself." MEANING OF SERVICE BY POST: 34. Section 27 of the General Clauses Act, 1897 referred to above provides the meaning of service by post. It postulates that where any Act authorizes any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post. Hence, service by post implies service by registered post. 35. The aforesaid has been reaffirmed by the Supreme Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed & Anr. reported in 2007 (6) SCC 555 wherein the Court opined that Section 27 of the General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post......... Unless and until the contrary is proved by the addressee, the service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. We may quote the relevant observations of the Supreme Court as under: "10. Unless and until the contrary is proved by the addressee, the service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. We may quote the relevant observations of the Supreme Court as under: "10. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address. 11. However, the Referring Bench was of the view that this Court in Vinod Shivappas case (supra) did not take note of Section 114 of Evidence Act in its proper perspective. It felt that the presumption under Section 114 of the Evidence Act being a rebuttable presumption, the complaint should contain necessary averments to raise the presumption of service of notice; that it was not sufficient for a complainant to state that a notice was sent by registered post and that the notice was returned with the endorsement "out of station"; and that there should be a further averment that the addressee-drawer had deliberately avoided receiving the notice or that the addressee had knowledge of the notice, for raising a presumption under Section 114 of Evidence Act. 12. Therefore, the moot question requiring consideration is in regard to the implication of Section 114 of the Indian Evidence Act, 1872 insofar as the service of notice under the said proviso is concerned. Section 114 of the Indian Evidence Act, 1872 reads as follows: "Section 114 - Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened. Regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume ......... Regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume ......... (f) That the common course of business has been followed in particular cases; ........." 13. According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below: "27. Meaning of service by post.- Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station," due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh AIR 1992 SC 1604 ; State of M.P. v. Hiralal and Ors (1996) 7 SCC 523 and V. Raja Kumari Vs. P. Subbarama Naidu and Anr. (2004) 8 SCC 774]. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved." 36. A similar view was taken by the Supreme Court in the case of M/s. Madan & Co. v. Wazir Jaivir Chand reported in 1989 (3) SCC 264. In this case, the Supreme Court while dealing with the question whether the duty of the landlord was complete by sending of notice with reference to the presumption under Section 27 of the General Clauses Act, held that once there is a proper tender of the demand notice at the correct address then there is service of the demand notice in view of the presumption as per Section 27 of the General Clauses Act. We may quote the relevant observations of the Supreme Court as under: "6...Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. We may quote the relevant observations of the Supreme Court as under: "6...Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on. and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under O. V of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned. it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the word "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him I gets served on, or is received by, the tenant." 37. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him I gets served on, or is received by, the tenant." 37. The Supreme Court, in D. Vinod Shivappa vs. Nanda Belliappa reported in AIR 2006 SCC 2179, while deciding appeals arising from orders passed by a learned Single Judge of the Karnataka High Court dismissing seven criminal petitions filed under Section 482 of the Cr.P.C. for setting aside the orders of the J.M.F.C. issuing process against the appellant on the complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881, observed in para 18 as under: "This Court noticed the position well settled in law that the notice refused to be accepted by the drawer can be presumed to have been served on him. In that case the notice was returned as "unclaimed" and not as refused. The Court posed the question "Will there be any significant difference between the two so far as the presumption of service is concerned?" Their Lordships referred to Section 27 of the General Clauses Act and observed that the principle incorporated therein could profitably be imported in a case where the sender had dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee, unless he proves that it was not really served and that he was not responsible for such non-service. This Court dismissed the appeal preferred by the drawer holding that where the notice is returned by the addressee as unclaimed such date of return to the sender would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the proviso of Section 138 of the Act. This would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. Since the appellant did not attempt to discharge the burden to rebut the aforesaid presumption, the appeal was dismissed by this Court. The aforesaid decision is significant for two reasons. This would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. Since the appellant did not attempt to discharge the burden to rebut the aforesaid presumption, the appeal was dismissed by this Court. The aforesaid decision is significant for two reasons. Firstly it was held that the principle incorporated in Section 27 of the General Clauses Act would apply in a case where the sender dispatched the notice by post with the correct address written on it, but that would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address." 38. In Dalmia Cement (Bharat) Ltd. vs. Galaxy Traders and Agencies Ltd. reported in (2001) 6 SCC 463 , the Supreme Court, once again, while deciding a matter arising under the Negotiable Instrument Act, 1881, has observed as under: "Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The dispatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. But as the presumption is rebuttable one, he has two options before him. One is to concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendee's stand and take the risk for proving that he in fact received the notice. It is open to the dispatcher to adopt either of the options. If he opts the former, he can afford to take appropriate steps for the effective service of notice upon the addressee. Such a course appears to have been adopted by the appellant-company in this case and the complaint filed, admittedly, within limitation from the date of the notice of service conceded to have been served upon the respondents." "Emphasis supplied" PRESUMPTION OF SERVICE BY REGISTERED POST IS A REBUTTAL PRESUMPTION: 39. It is pertinent to mention that the presumption of service by registered post is a permissible presumption i.e. a rebuttable presumption and not an inevitable presumption. In the case of Mst. L.M.S. Ummu Saleema v. B.B. Gujral & Anr. It is pertinent to mention that the presumption of service by registered post is a permissible presumption i.e. a rebuttable presumption and not an inevitable presumption. In the case of Mst. L.M.S. Ummu Saleema v. B.B. Gujral & Anr. [ 1981 (3) SCC 317 ], the Supreme Court dealt with the issue of presumption of service of letter sent under postal cover, and observed that the presumption under Section 114 of the Act is a permissible and not an inevitable presumption. Neither Section 16 of the Evidence Act nor Section 114 of the Act compel the Court to draw a presumption. The presumption may or may not be drawn. On the facts and circumstances of a case, the Court may refuse to draw the presumption. On the other hand, the presumption may be drawn initially but on a consideration of the evidence, the Court may hold the presumption rebutted. We may quote the relevant observations of the Supreme Court as under; "6. The next submission of the learned counsel for the detenu was that although the detenu had retracted from his alleged original statement dated 7-8-80 long before the order of detention was made, the fact of such retraction was not considered by the detaining authority before making the order of detention. The plain and simple answer of the respondents was that there was no such retraction as claimed by the detenu. According to the detenu as soon as he was released on bail, on 14-8-80, he addressed a letter to the Assistant Collector of Customs, Cuddalore, retracting from his former statement. This communication was sent under Certificate of Posting, a photostat copy of which was produced before us. In support of the claim that he had retracted from his former statement and had communicated : the retraction under certificate of posting, the detenu invited our attention to the reply sent by him to the show-cause notice issued by the Collector of Customs under the Customs Act and to the representation made by him to the detaining authority, in both of which he made a reference to the alleged retraction. One curious feature which we must notice is that the detenu sent to the detaining authority along with his representation a photostat copy of the Certificate of posting but carefully ref Ramed from sending a copy of the letter of retraction itself. This is indeed extraordinary. One curious feature which we must notice is that the detenu sent to the detaining authority along with his representation a photostat copy of the Certificate of posting but carefully ref Ramed from sending a copy of the letter of retraction itself. This is indeed extraordinary. If the detenu was serious in his request that his retraction should be considered by the detaining authority while considering his representation one would expect him to send a copy of the letter of retraction along with his representation instead of a copy of the certificate of posting. One cannot help a suspicion that evidence was being brought into existence to support the assertion that a letter of retraction was sent on 14-8-80. The detaining authority has stated in the counter that no such letter dt. 14-8-80 was received by the Assistant Collector of Customs. The entire file has been produced before us and on a perusal of the file we find that a thorough search was made, not once but several times, to find out if such a letter was received in the office of the Assistant Collector of Customs, Cuddalore but no such letter could be traced. The learned counsel urged that the detaining authority was not competent to state that the Assistant Collector of Customs had not received such a letter and that it was for the Asstt. Collector to say so. There is no force in this submission. The file produced before us shows that the Asstt. Collector of Customs had informed the detaining authority and the Collector of Customs that he had made a thorough search for the letter said to have been written on 14-8-80 and that no such letter had been received in his office. We are satisfied that the alleged letter of retraction was only a myth. The certificate of posting might lead to a presumption that a letter addressed to the Assistant Collector of Customs was posted on 14-8-1980 and in due course reached the addressee. But, that is only a permissible and not an inevitable presumption. Neither Section 16 nor Section 114 of the Evidence Act compel the Court to draw a presumption. The presumption may or may not be drawn. On the facts and circumstances of a case, the Court may refuse to draw the presumption. But, that is only a permissible and not an inevitable presumption. Neither Section 16 nor Section 114 of the Evidence Act compel the Court to draw a presumption. The presumption may or may not be drawn. On the facts and circumstances of a case, the Court may refuse to draw the presumption. On the other hand the presumption may be drawn initially but on a consideration of the evidence the Court may hold the presumption rebutted and may arrive at the conclusion that no letter was received by the addressee or that no letter was ever dispatched as claimed. After all, there have been cases in the past, though rare, where postal certificates and even postal seals have been manufactured. In the circumstances of the present case, circumstances to which we have already referred, we are satisfied that no such letter of retraction was posted as claimed by the detenu." 40. Similarly, in the case of Parimal (supra), the Supreme Court held that in view of Section 114(f) of the Evidence Act with Section 27 of the General Clauses Act, 1897, there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. We may quote the relevant observations of the Supreme Court as under: "15. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue." 41. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue." 41. In order to determine the application under Order IX, Rule 13, CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application. PRESUMPTION OF SERVICE BY REGISTERED POST AND BURDEN OF PROOF: 42. The Supreme Court, after an exhaustive review of its earlier judgments, held in Greater Mohali Area Development Authority and Ors. v. Manju Jain and Ors., AIR 2010 SC 3817 , held that in view of the provisions of Section 114, Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by the Supreme Court in Dr. Sunil Kumar Sambhudayal Gupta and Ors. vs. State of Maharashtra, JT 2010 (12) SC 287 : (2011 Cri LJ 705 (SC). BURDEN TO PROVE PRESUMPTION OF SERVICE ON THE P ARTY CHALLENGING P RESUMPTION: 43. In the case of Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani [ 1989 (2) SCC 602 ], the Supreme Court examined the issue regarding the presumption of service of letter sent by registered post under Section 27 of the General Clauses Act, and held that there is a presumption of service of a letter sent under registered cover.... In the case of Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani [ 1989 (2) SCC 602 ], the Supreme Court examined the issue regarding the presumption of service of letter sent by registered post under Section 27 of the General Clauses Act, and held that there is a presumption of service of a letter sent under registered cover.... No doubt the presumption is rebuttable and it is open to the party concerned to adduce evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him.....The burden to rebut the presumption lies on the party challenging the factum of service. It was further pleaded that the respondent had refused to accept the registered letter and the same had been returned back by the postal authorities with an endorsement that the addressee refused to accept the same. In his rejoinder affidavit the respondent had denied the aforesaid allegations and asserted that the letter was not tendered to him and he never refused to accept the registered cover and the postal endorsement was wrong and incorrect. Apart from denying the postal endorsement, the respondent placed no material before the Court in support of his pleading. In such circumstances, the Supreme Court held that the Division Bench was totally wrong in holding that no opportunity was afforded to the respondent to meet the case set up by the Board that the letter dated 24-4-1974 was served on the respondent. No new plea had been raised by the Board before the Division Bench instead the plea relating to service of the aforesaid letter had already been before the learned single Judge. We may quote the relevant observations of the Supreme Court as under: "8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the Party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover. We are, therefore, of the opinion that the letter dated 24-4-1974 was served on the respondent and he refused to accept the same. Consequently, the service was complete and the view taken by the High Court is incorrect." FAILURE TO EFFECT SERVICE BY AFFIXATION OF A COPY OF THE SUMMONS ON THE DOOR OF THE DEFENDANT'S RESIDENCE: 44. The aforesaid has something to do with the provisions of Order V Rule 17 of the C.P.C. We have quoted Order V Rule 17. In Nathu Ram v. Salim Abdul Karim ( AIR 1933 All 165 ), Iqbal Ahmad, J. held that the failure to effect service by affixation of a copy of the summons on the door of the defendant's residence was a mere irregularity in the service of summons and simply because of such irregularity the defendant was not entitled to have the ex parte decree set aside, if the defendant knew or but for his willful conduct would have known of the date of hearing of the suit. The learned Judge further held that though the provisions of Order V Rule 17 were mandatory but the proviso to Rule 13 of Order IX cures the defect, if any, in service of summons. The learned Judge further held that though the provisions of Order V Rule 17 were mandatory but the proviso to Rule 13 of Order IX cures the defect, if any, in service of summons. In Anaithalayan v. Marudamuthu ( AIR 1953 Mad 528 ), Venkatarama Aiyar, J. considered this question and the effect of the proviso added by the Madras High Court to Order IX, Rule 13 and held that the proviso applies to all those cases in which there is failure to observe the procedure for service of summons as laid down under Order V, Rule 17. In that case also the defendant had refused to accept the summons but the process server had failed to affix the summons on the outer door of his house. The trial Court held the service of summons sufficient and passed ex parte decree. The defendant's application for setting aside the ex parte decree was rejected on the finding that the defendant had notice of the date of hearing in sufficient time and failure of the process server to affix the summons on the outer door was merely an irregularity as contemplated by the proviso. That order was upheld by the Madras High Court. 45. Is it permissible for the Court to issue summons by registered post acknowledgment due to the defendant residing outside the territorial jurisdiction of the Court in which the suit is instituted? Mr. Trivedi, the learned senior counsel submitted that the Commercial Court was not justified or rather it was not permissible for the Commercial Court in law to issue summons by registered post acknowledgment due knowing fully well that the defendant is residing outside its territorial jurisdiction. In support of such submission, strong reliance has been placed by Mr. Trivedi on a decision of the Himachal Pradesh High Court in the case of Aar Kay Traders (supra). Justice Deepak Gupta (as His Lordship then was), after an exhaustive review of the various provisions of Order V Rule 9 of the C.P.C., held as under: "15. Sub-rule (1) to Sub-rule (3) of Rule 9 deal with service of summons on defendant residing within the jurisdiction of the Court. Sub-rule (1) provides that the Court unless it otherwise directs may deliver summons to the defendant either through the Process Serving Agency or through the courier service as approved by the Court. Sub-rule (1) to Sub-rule (3) of Rule 9 deal with service of summons on defendant residing within the jurisdiction of the Court. Sub-rule (1) provides that the Court unless it otherwise directs may deliver summons to the defendant either through the Process Serving Agency or through the courier service as approved by the Court. Sub-rule (3) provides that in addition to the normal service through Process Serving Agency or approved courier service, the Court may direct the service of summons by registered post acknowledgement due, speed post, courier service, fax or electronic mail (for short: e-mail). 16. Sub-rule (4) deals with service of defendants residing outside the territorial jurisdiction of the Court. This sub-rule is not very happily worded. It is, however, apparent that the intention of this sub-rule is that when the defendant resides outside the jurisdiction of the Court in which the suit is instituted, service can be effected on such defendant by any mode of service as prescribed in Sub-rule (3) except registered post acknowledgment due. This would mean that the service can be effected upon a defendant residing outside the jurisdiction of the Court under Sub-rule (4) by courier service, speed post, fax or e-mail. 17. Sub-rule (S) provides that when the postal article through which the summons are sent to the defendant or his authorized agent is received back with an endorsement of an employee of the postal department or a person authorized by the courier service, to the effect that the defendant or his agent has refused to take delivery of the postal article containing the summons when tendered or transmitted to him, the Court can declare that the defendant had been duly served. Proviso to Sub-rule (5) further mandates where the summons were sent through properly stamped, prepaid registered post acknowledgement due and the acknowledgement is not received back within thirty days from the date of issue of the summons for any reason whatsoever, the Court can issue a declaration referred to in Sub-rule (5). 18. Rule 6, lays down that the High Court or the District Judge shall prepare a panel of courier agencies for the purpose of Sub-rule (1). 19. Rule 9-A provides a new method of service. This method is available to the Court only if the plaintiff applies for the same. 18. Rule 6, lays down that the High Court or the District Judge shall prepare a panel of courier agencies for the purpose of Sub-rule (1). 19. Rule 9-A provides a new method of service. This method is available to the Court only if the plaintiff applies for the same. In case the plaintiff makes an application to the Court, the Court may permit the plaintiff himself or through his agent to effect service upon the defendant(s) directly. This, however, has to be in addition to the mode of service of summons provided under Rule 9. Under Sub-rule (2), the service of summons shall be effected by the plaintiff himself or through some other person by delivering or tendering to the defendant personally a copy of the summons signed by the Judge or authorized officer of the Court. The provisions of Rules 17 and 18 CPC apply to such summons. It is important to note that under Sub-rule (4) if the defendant refuses to accept the summons or refuses to sign an acknowledgement of the receipt of the summons, the defendant cannot be proceeded against ex parte. It is obvious that the Legislature was aware that some unscrupulous plaintiff may make a false statement that the defendant has refused to accept the summons or sign the acknowledgement. Therefore, under Rule 9A, service is valid only if the defendant actually receives the summons and signs the acknowledgment. 20. The purpose of Rule 21 is to save the time of the Court and to take advantage of the advancement of technology and also to take advantage of the new alternative method of post i.e. courier service. This rule provides that when summons are sought to be served through the Process Serving Agency of some Court other than the Court in which the case is pending the Court where the matter is pending can send the summons to the Court having jurisdiction over the area where the defendant is residing and through which Court service is to be effected, by post, courier service, fax message or e-mail, or any other means as may be provided by the rules made by the High Court. 21. Earlier under Order 21, the Court was bound to send summons to another Court either through its officer or by post. Now summons can be sent by one Court to another by any of the means mentioned therein. 21. Earlier under Order 21, the Court was bound to send summons to another Court either through its officer or by post. Now summons can be sent by one Court to another by any of the means mentioned therein. After receipt of the summons, the recipient Court is required to get the summons served upon the defendant in terms of Rule 23. 22. After analyzing all the legal provisions, I am summarizing the various modes of service available to the Court in case of defendant residing within or without the jurisdiction of the Court where the matter is pending. SERVICE OF SUMMONS ON DEFENDANT RESIDING WITHIN THE JURISDICTION OF THE COURT. 23. On a close and careful scrutiny of the legal provisions, it is apparent that in the case of defendants residing within the territorial jurisdiction of the Court where the suit is pending, the Court is required to normally issue summons only through the process-serving agency or through approved courier service. It may, however under Rule (3), also direct service of summons on the defendant(s) by registered post acknowledgement due, speed post, courier service as well as fax message or e-mail. In addition, the plaintiff can apply that he may be permitted to serve the defendant personally under Rule 9-A. SERVICE OF SUMMONS WHERE THE DEFENDANT RESIDES OUTSIDE THE JURISDICTION OF THE COURT. 24. In cases where the defendant resides outside the territorial jurisdiction of the Court in which the suit is instituted, the Court cannot issue summons by registered post acknowledgement due. It has been urged that this is a retrograde step and will unnecessary delay the suit. It does not appear to be so. Probably, the reason why registered post service has not been permitted when the defendant resides outside the jurisdiction is that in a large number of cases, the registered letter never comes back and then a declaration of deemed service is made after thirty days. The legislature, probably felt that where the defendant resides far away, outside the jurisdiction of the Court, it would be unjust to raise such a presumption. 25. The legislature, probably felt that where the defendant resides far away, outside the jurisdiction of the Court, it would be unjust to raise such a presumption. 25. Be that as it may, this Court cannot go into the reasons which may have weighed with the legislature since the language of Sub-rule (4) is absolutely clear and the only interpretation which can be given to Sub-rule (4) is that when the defendant resides outside the jurisdiction, he can under this sub-rule only be served by speed post, courier service, fax message or e-mail but not by registered post acknowledgement due. 26. It is important to note that in Sub-rule (4), it has been mentioned that the provisions of Rule 21 shall not apply when service is sought to be effected by any of the methods provided in Sub-rule (3) except registered post acknowledgement due. This only means that the Court while sending summons through speed post, courier service, fax message or e-mail, is not required to send summons to the Court in whose jurisdiction the defendant resides. The summons can be sent directly to the defendant without the intervention of the other Court. This is supported by basic common sense. There is no reason why summons which have to be sent by speed post, courier service, fax or e-mail should be sent to another Court for onward service. This will save time and money. However, this does not mean that the defendant residing outside the jurisdiction of the Court cannot be served by the mode of process serving agency. This mode is still available under Order V, Rule 21 wherein the Court can send the summons to the Court (not being the High Court) having jurisdiction over the place where the defendant resides. Similarly, service can be effected on the application of the plaintiff on such defendant under Rule 9-A also. 27. As discussed above, the summons can be sent by various modes to shorten the time. The summons can be sent by fax, e-mail, courier service or by speed post. They can also be sent through an Officer of the Court. Once the Officer of the recipient Court receives the summons, the same can be served under Rule 23 upon the defendant. The summons can be sent by fax, e-mail, courier service or by speed post. They can also be sent through an Officer of the Court. Once the Officer of the recipient Court receives the summons, the same can be served under Rule 23 upon the defendant. The impact of this sub-rule is that when the Court serves* summons received through fax or e-mail, they may not bear the actual seal and Signature of the Court. Obviously, summons sent by fax or e-mail cannot contain the original seal and Signature of the Court and shall have only a facsimile image of the same. A presumption will have to be raised that service of these summons not bearing the original seal or signatures is valid service. The Code of Civil Procedure, recognizes that this is a proper means of service and the defendant cannot urge that the service upon him is not proper only on the ground that the summons received by him do not bear the actual seal and Signature of the Court." 46. Thus, His Lordship took the view that it is not permissible for the Court to issue summons by registered post to a defendant residing outside the territorial jurisdiction of the Court. Mr. Trivedi, the learned senior counsel, in this regard, placed strong reliance on the wording as contained in Order X Rule 9 (4) of the C.P.C. We quote Rule 9(4) as under: "R. 9. Delivery of summons by Court ... (4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of rule 21 shall not apply." 47. With profound respect, we find it difficult to subscribe to the views of His Lordship in the aforesaid decision. A decision of the Kerala High Court in the case of Razak Trading Company vs. J K Industries Ltd. reported in 2003 AIR (Ker) 171 taking the contrary view appears to be much more reasonable and commendable. The Kerala High Court observed as under: "8. A decision of the Kerala High Court in the case of Razak Trading Company vs. J K Industries Ltd. reported in 2003 AIR (Ker) 171 taking the contrary view appears to be much more reasonable and commendable. The Kerala High Court observed as under: "8. The learned counsel appearing for the petitioner has argued that in view of the provisions contained in Rule 9(3) the Court has no power to order service of summons to a person residing outside the jurisdiction of that Court. It is argued that the provision contained in old Rule 19-A was an independent Rule and not confined to the persons residing within the jurisdiction of the Court ordering summons. It is argued that Rule 9 is confined to the service of summons to persons residing within the jurisdiction of the Court. It is true that Rule 9(1) is confined to the persons residing within the jurisdiction of the Court ordering summons. But Rule 9(3) contains no such restriction. The provisions contained in Rule 9(4) make the position clear. Rule 9(4) of Order V provides that if the defendant resides outside the jurisdiction of the Court which orders service of summons and the Court orders service of summons under Rule 9(3) (except by registered post with acknowledgment due) the provisions contained in Rule 21 shall not apply. The use of the expression 'except by registered post with acknowledgment due' is likely to create confusion. In this connection the provisions of Rule 21 is also relevant. It reads as follows: "21. Service of summons where defendant resides within jurisdiction of another Court.- A summons may be sent by the Court by which it is issued, whether within or without the State, either by one of its officers for by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail Service or by any other means as may be provided by the rule made by the High Court), to any Court (not being the High Court) having jurisdiction in the place where the defendant resides." Before 2002 amendment the summons to be served through another Court was forwarded to that Court either by one of the officers of this Court ordering service of summons or through post. Even at that time, it was not sent through registered post with acknowledgment due. Even at that time, it was not sent through registered post with acknowledgment due. After 1-7-2002 such summons can be sent to another Court through courier service, Fax or electronic mail service. That is the reason why the words registered post with acknowledgement due is exempted. If the argument of the counsel for the petitioner is accepted summons can be served on a person residing outside the jurisdiction of a Court ordering service of summons through courier, Fax, electronic mail but not through registered post. The same will lead to an absurd position. According to me a Court can order service of summons to a person residing outside its jurisdiction by registered post with acknowledgement due in view of the provisions contained in sub-rules (3) and (4) of Rule 9. So there is no force in the argument advanced by the counsel for the petitioner that service of summons by registered post can be ordered only if the defendant is residing within the jurisdiction of the Court ordering summons." 48. In view of the aforesaid, we hold that a Court can order service of summons to a person residing outside its jurisdiction by registered post with acknowledgement due in view of the provisions contained in sub-rule (3), (4) and (9) of Rule 9. 49. What is prohibited to be served by registered post is only the summons to the accused under the provisions of the Criminal Procedure Code. Under Section 62 of the Cr.P.C., the summons to an accused cannot be sent by registered post, but must be delivered personally. Section 69 of the Cr.P.C. permits issue of summons to a witness by a registered post. Thus, the only embargo is Section 62 of the Cr.P.C., which prohibits issue of summons to an accused by registered post. WAS IT OBLIGATORY ON THE PART OF THE COMMERCIAL COURT OR THE PLAINTIFF TO EXAMINE THE POSTMAN OR ANY OTHER AUTHORITY OF THE CONCERNED POST OFFICE: 50. In the aforesaid context, we may refer to and rely upon the decision of the Supreme Court in P T Thomas vs. Thomas Job reported in 2005 (6) SCC 478 . The Supreme Court observed in para 15 as under: "The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act. The requirement of Section has been complied with in this case. The Supreme Court observed in para 15 as under: "The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act. The requirement of Section has been complied with in this case. The reasoning of the High Court on this issue is not correct and not in accordance with factual position. In the notice issued, the Postman has made the endorsement. This presumption is correct in law. He had given notice and intimation. Nevertheless, the respondent did not receive the notice and it was returned unserved. Therefore, in our view, there is no obligation cast on the appellant to examine the Postman as assumed by the High Court. The presumption under Section 114 of the Evidence Act operates apart from that under the Post Office Act." 51. In Syndicate Bank Ltd. vs. General Secretary, Syndicate Bank Staff Association reported in 2000 AIR (SC) 2198, the Supreme Court observed as under; "15. ...When evidence was led before the Tribunal, Bank produced the registered covers, which had been received back with the endorsement "refused" and the addressee "not found during delivery time". Dayananda said he never refused to receive the notice. In these circumstances Tribunal thought it necessary to hold that notice was not served on Dayananda as the Bank did not examine the postman. The notice was sent on the correct address of Dayananda and it was received back with the postal endorsement "refused". A clear presumption arose in favour of the Bank and against Dayananda. Yet the Tribunal held that no notice was given to Dayananda as postman was not produced by the Bank. This appears to us to be rather an incongruous finding by the Tribunal. Unfortunately, High Court did not go into this question at all. Considering the conduct of Dayananda all this period and after three years of his having voluntarily retired from the Bank in terms of Clause 16 of the Bipartite Settlement his statement that he did not receive the notice was a sheer lie. His whole edifice was built on falsehood and yet the Tribunal was there to give him relief on the platter though at the same time criticised his conduct during his employment with the Bank." 52. As against the aforesaid two decisions of the Supreme Court, Mr. His whole edifice was built on falsehood and yet the Tribunal was there to give him relief on the platter though at the same time criticised his conduct during his employment with the Bank." 52. As against the aforesaid two decisions of the Supreme Court, Mr. Trivedi, the learned senior counsel has placed reliance on the decision of the Supreme Court in the case of A. Rama Rao (supra). In A. Rama Rao, the attention of the Supreme Court appears to have not been drawn to its earlier two decisions in the case of Syndicate Bank Ltd. (supra) and P T Thomas (supra) referred to above. 53. We are of the view that it was not obligatory on the part of the Court nor the plaintiff to examine the postman or any other postal authority for the purpose of establishing that the addressee had in fact refused to accept the summons. 54. In the aforesaid context, we may refer to and rely upon few more decisions of the Supreme Court including one of this Court. In Basant Singh vs. Roman Catholic Mission reported in 2002 (7) SCC 531 , the Supreme Court observed as under: "9. Order 5, proviso to sub-rule (2) of R. 19-A of C.P.C. provides that where the summons are properly addressed, prepaid and duly sent by registered post with acknowledgment due, 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, the Court shall presume that notice is duly served. Further, S. 27 of the General Clauses Act, 1897 (in short 'Act') provides similar provision. The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading convincing and cogent evidence. 10. It is nobody's case that the postal addresses of the defendants are not properly addressed and, therefore, the registered summons could not be served. It is also nobody's case that the registered summons are not prepaid and not duly sent. In fact the registered summons, bearing receipt Nos. 875 and 876 dated 24-4-1986, were issued is borne out from the record. 11. Once it is proved that summons were sent by registered post to a correct and given address, the defendants' own conduct becomes important. In fact the registered summons, bearing receipt Nos. 875 and 876 dated 24-4-1986, were issued is borne out from the record. 11. Once it is proved that summons were sent by registered post to a correct and given address, the defendants' own conduct becomes important. Before the trial Court, the appellants were allowed to lead evidence in support of their contentions. As order to this effect was passed by the trial Court on 11-1-1991. The premises in question is occupied by two defendants jointly Hari Singh and Basant Singh. Hari Singh appeared and examined himself stating that he did not receive the registered letter. However, the defendant-Basant Singh did not appear and no evidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgment due. His own conduct shows that the registered summons had been duly served on him. As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the statute. This apart, it is inherently improbable that the registered summons were duly served on Basant Singh but not to Hari Singh when they occupied the tenanted premises jointly." 55. The Supreme Court in Puwada Venkateswara Rao v. Chidamana Venkata Ramana reported in AIR 1976 SC 869 observed as under: "8. A question raised before us by learned Counsel for the respondent is whether the notice sent by the respondent-landlord could be held not to have been served at all simply because the Postman, who had made the endorsement of refusal, had not been produced. The Andhra Pradesh Court had relied upon Meghji Kanji Patel v. Kundanmal Chamanlal, AIR 1968 Bom 387 to hold that the notice was not served. There, a writ of summons, sought to be served by registered post, had been returned with the endorsement "refused". The Bombay High Court held that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. There, a writ of summons, sought to be served by registered post, had been returned with the endorsement "refused". The Bombay High Court held that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. In this state of evidence, it was held that, unless the postman was produced, the statement of the defendant on oath must prevail. An ex parte decree, passed on the basis of such an alleged service was, therefore, set aside. On facts found, the view expressed could not be held to be incorrect. 9. In Nirmalabala Debi v. Provat Kumar Basu, (1948) 52 Cal WN 659 it was held, by the Calcutta High Court, that a letter sent by registered post, with the endorsement "refused" on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service. What was held there was that the mere fact that the letter had come back with the endorsement "refused" could not raise a presumption of failure to serve. On the other hand, the presumption under Section 114 of the Evidence Act would be that, in the ordinary course of business, it was received by the addressee and actually refused by him. This is also a correct statement of the law. 10. The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. The Andhra Pradesh High Court had applied the ratio decidendi of the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct. It is not always necessary, in such cases to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us." 56. In Adambhai Haji Ismail vs. Bhaiya Ramdas Badiudas reported in AIR 1975 Gujarat 54, the Full Bench of this Court was called upon to answer the following two questions: "(i) Whether the mere endorsement of 'refused' found on the returned registered envelope without being substantiated by any evidence of the postal peon who went to deliver the letter to the addressee would be sufficient for raising a presumption statutory or factual, that the addressee had, in fact, refused to accept the delivery of that letter? (ii) Whether in view of the special provisions contained in Section 12 of the Rent Act, the addressee-tenant who has refused to take delivery of a registered letter addressed to him can be posted with a knowledge that his landlord has given him a notice to pay up the arrears of rent?" Under the orders of the learned Chief Justice this Full Bench has been constituted for determining the aforesaid two questions." The relevant discussion is noted hereinbelow: "2. The first question that is raised is whether when notice dated March 1, 1965 demanding the rent and possession of the premises under the provisions of the Rent Act was sent by the lawyer of the landlord by registered post with an acknowledgement due to the opponent and returned with two endorsements dated March 4, 1965 and March 5, 1965 of refusal, a presumption of due service of the notice can arise in Law. The arguments advanced on behalf of the landlord in this Court were that such a presumption does arise in view of the provisions of Section 27 of the General Clauses Act, 1897 or Section 28 of the Bombay General Clauses Act, 1904 and under Section 114 of the Indian Evidence Act. The arguments advanced on behalf of the landlord in this Court were that such a presumption does arise in view of the provisions of Section 27 of the General Clauses Act, 1897 or Section 28 of the Bombay General Clauses Act, 1904 and under Section 114 of the Indian Evidence Act. Before we refer to the aforesaid provisions of law we shall first take into account the provisions of Section 12 (2) of the Act, which provide that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882. What the aforesaid provisions require is that before a suit for possession on the ground of arrears of rent is filed a notice demanding the arrears of rent, possession of the premises and terminating the tenancy has to be served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act. The relevant part of Section 106 of the Transfer of Property Act provides that every notice under this section must be in writing, signed by or on behalf of the person giving it, and may be sent by post to the party who is intended to be bound by it. Having noticed these relevant provisions we shall refer to Section 27 of the General Clauses Act which is as under: "27. Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the times at which the letter would be delivered in the ordinary course of post." Section 28 of the Bombay General Clauses Act provides: "28. Where any Bombay Act, or Gujarat Act made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." It is obvious that Section 27 of the General Clauses Act and Section 28 of the Bombay General Clauses Act are identical. The question whether in the present case the provisions of Section 27 of the General Clauses Act or Section 28 of the Bombay General Clauses Act apply loses all its importance because the sections are similarly worded and are identical. The purpose of the General Clauses Acts is to place in one single statute different provisions as regards interpretations of words and legal principle, which would otherwise have to be specified separately in many different Acts and Regulations. Whatever the General Clauses Act says whether as regards the meanings of the words or as regards legal principles has to be read in every statute to which it applies, vide Chief Inspector of Mines v. Karam Chand Thapar, AIR 1961 SC 838 . New Section 27 of the General Clauses Act, 1897 is divisible in two parts. The first part deals with the mode of service and the second part deals with the time of service. On the proof of facts that a letter on which stamp has been paid properly, which is properly addressed, which contains the document and which was sent by registered post, a two fold presumption arises under the section, namely, (i) that the service shall be deemed to have been effected; and (ii) deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post. The said presumption is rebuttable because the words "unless the contrary is proved" govern both the parts of the section. The said presumption is rebuttable because the words "unless the contrary is proved" govern both the parts of the section. It was vehemently argued before us that the aforesaid words relate and apply only to the second part of the section and in respect of the service of the letter the presumption which arises under the first part of the section is conclusive. Reliance was sought to be placed on the decision in The King v. Westminster Unions Assessment Committee, Ex parte Woodward and Sons, (1917) 1 KB 832, wherein Section 65 of the Valuation (Metropolis) Act, 1869 came for interpretation before the Court. It is not possible to accept this argument. It is true that words "unless the contrary is proved" come just before the words "to have been effected at the time etc." but the whole import of the section seems to be that the two fold presumption arising under that Section holds good unless the contrary is proved. There is no reason to assume that the first part of the section containing the words "service shall be deemed to be effected" is to be treated as a complete sentence before we read the words "to have been effected at the time etc.". The words of the section are such that the appropriate place where the words "unless the contrary is proved" can be conveniently inserted is at the place where they are as the intention of the legislature is that these words must govern both the parts. If the presumption of the service is to be treated as conclusive, evidence to prove that in fact service had not been made would be inadmissible and that cannot be the intention of the legislature especially when the legislature was enacting such a provision in the General Clauses Act. Whenever the legislature intends to make a statutory presumption as conclusive it ordinarily does specifically say so. It is, therefore, legitimate to hold that the two-fold presumption arising under Section 27 of the General Clauses Act is a rebuttable one. The consequence is that the words "unless the contrary is proved" govern both the parts of the section. In this view of ours we are fortified by the decisions of the Allahabad High Court in L.C. De Souza, Cawnpore, In re. AIR 1932 All 374 and Badri Prasad v. Lakshmi Narain, AIR 1964 All 426 . The consequence is that the words "unless the contrary is proved" govern both the parts of the section. In this view of ours we are fortified by the decisions of the Allahabad High Court in L.C. De Souza, Cawnpore, In re. AIR 1932 All 374 and Badri Prasad v. Lakshmi Narain, AIR 1964 All 426 . Now in the case of Ex parte Woodward and Sons (supra) the relevant part of Section 65 which came for interpretation before the Court was as follows: "They may also be served and sent by post, by a prepaid letter, addressed to such person, or to the office of such body or to their clerk, and, if sent by post, shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post, and in proving such service of sending it shall be sufficient to prove that the letter containing the notice was properly addressed and prepaid and put into the post." The question involved was in respect of assessment of a property and the law required that a notice by post be served in case where valuation was sought to be revised to the detriment of the owner. The following passage in the judgment of Viscount Reading C. J. has been relied upon: "A notice prepaid and addressed as directed by Section 65 if sent through the post 'shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post'. That provision applies to a case where in fact the notice has not been received, otherwise it has no meaning. The intention is to treat as a fact something which has not been established as a fact-even something which can be shown not to be a fact. The section continues: 'and in proving such service or sending it shall be sufficient to prove that the letter containing the notice was properly addressed and prepaid and put into the post.' In my view, when those conditions have been performed it must be taken as concluded that the notice has been served and received. In this opinion I am fortified by the whole scheme of the Act. In this opinion I am fortified by the whole scheme of the Act. It is most important for the local government of the county that assessments should be made by a properly constituted committee whose duties and obligations should be defined by statute. We are not dealing with reciprocal rights and duties of individuals." Now the Court in that case was dealing with a section in which the words "unless the contrary is proved" are not to be found. The section was read as a whole and along with the other provisions of the Act and having so read it was held by the Court that the presumption arising there under was conclusive one. Lush J. who also gave the judgment in that case observed that it was necessary to consider the language of Sections 41 and 42 of the earlier Act, the Union Assessment Committee Act, 1862 which for the purposes of the metropolis only had been superseded by Section 65. The learned Judge further observed that these two enactments standing side by side, one of them applicable to the metropolis only and the other to places other than the metropolis and, therefore, how could it be said that the additional words in Section 65 had no operation and were intended to effect no alteration in law? The learned Judge further proceeded to consider the entire scheme of the Act and held that the presumption that arose under the provisions of Section 65 was conclusive. Thus the said decision cannot be of any assistance in construing Section 27 of the General Clauses Act which is differently worded. In Regina v. County of London Quarter Sessions Appeals Committee, Ex parte Rossi, (1956) 1 QB 682 , a notice by post pursuant to Section 3 (1) of the Summary Jurisdiction (Appeals) Act, 1933 of the date, time and place fixed for hearing of an appeal was given by the mother of an illegitimate child from the dismissal of her summons against a man whom she alleged to be the father of the child. The notice was returned to the sender with postal mark "Undelivered...... no response". The notice was returned to the sender with postal mark "Undelivered...... no response". The Court in the case was concerned with interpretation of Section 26 of the Interpretation Act, 1889 which is in identical terms with Section 27 of the General Clauses Act, Denning J. observed as under: "In the present case, therefore, when the case was called on for hearing on September 28, 1954, and Mr. Rossi did not appear, it was essential for counsel for Mrs. Minors to prove service of the notice in accordance with Section 3 (1) of the Act. He had to prove that the clerk of the peace had in due course given Mr. Rossi notice of the date, time and place of the hearing. This could be done by proof that a notice had been sent to him in good time by post in a registered letter which had not been returned, for, it could then be assumed that it had been delivered in the ordinary course of post; see Section 26 of the Interpretation Act, 1889. But once it appeared that the letter had been returned undelivered, then it was quite plain that he had not been given notice at all of the date, time and place of the hearing. In short, service had not been effected; and the Court should not have entered upon the hearing at all." Morris L. J. made the following observations: "Then by the concluding words of Section 26, the sending of the notice was deemed, unless the contrary was proved, to have been effected at the time at which the letter would have been delivered in the ordinary course of post. But here the contrary was proved. It was proved not merely that the letter was not delivered in the ordinary course of post but that the letter was not delivered at all. But here the contrary was proved. It was proved not merely that the letter was not delivered in the ordinary course of post but that the letter was not delivered at all. Service cannot in this case be deemed 'to have been effected' at some particular time, i.e., in the ordinary course of post; service was proved not to have been effected at all." The said decision came up for consideration before Lord Denning, M. R. in Hewitt v. Leicester Corpn., (1969) 2 All ER 802, where a notice sent by post was returned with the postal mark 'gone away', Lord Denning, M. R. observed as follows: "I prefer to go by the earlier decision of this Court in R. v. Appeal Committee of County of London Quarter Sessions, Ex parte Rossi, (1956) 1 QB 682 . There a bastardy Summons was returned to the sender marked undelivered.... no response'. It was held that it had not been served...... This is a case like Rossi's case where the time of service was important. The valuation depended on it. Once it appeared that the letter of 20th May 1965 was returned through the post marked 'gone away', then it was quite plain that it was not served at all. We are not bound to 'deem' a notice to be served at a particular time, when we know that in fact it was not served at all." In Beer v. Davies, (1958) 2 QB 187, Lord Goddard C. J. considered the decision in Ex parte Rossi and observed as under: "In Reg v. County of London Quarter Sessions Appeals Committee, Ex parte Rossi, (1956) 1 QB 682 , the Court of Appeal seem to me to have decided that where a notice is served by registered post or is purported to be served by registered post, it is not enough to prove that it was correctly directed, stamped and posted. That is prima facie enough, but it can be shown that the letter was never delivered, and if it was never delivered then the Court of Appeal has said that there has not been service and that section 26 of the Interpretation Act does not assist." The aforesaid decisions clearly lay down that the presumption of service which arises under the first part of Section 26 of the Interpretation Act of 1889 which is identical in terms with Section 27 of the General Clauses Act, is rebuttable and supports the view which we have taken. 3. It was sought to be argued, in the alternative, that the words "until the contrary is proved" must only refer to the conditions contained in the first part of the section and have no reference to actual service and if any of these conditions are not proved, the presumption that arises under the section is taken away. For this argument reliance was sought to be placed in Mrs. Achamma Thomas v. Fairman, AIR 1970 Mys 77 and on the following passage: "It is contended by the respondent's counsel that in this case the very fact that the registered letter has come back with the endorsement as mentioned above, shows that the contrary has been proved, namely that there has been no due service effected on the tenant; on the other hand, it is submitted that the service would be deemed to be effected if the four conditions are fulfilled namely, sending the letter by registered post, it being properly addressed, prepaid and the letter contains the document; the contrary that is required to be proved to take away the presumption is with reference to the four requirements referred to above. It appears to me that this contention is not without force. It is only to meet the contingency of a person who is to be served with the notice trying to evade it, that the service shall be deemed to have been effected if the four conditions are fulfilled. If the contrary to be proved has reference to the actual service, then provision of Section 27 could be rendered useless by the addressee avoiding to receive the letter or even refusing the registered letter." With respect to the learned Judge of the Mysore High Court it is not possible to accept this argument. If the contrary to be proved has reference to the actual service, then provision of Section 27 could be rendered useless by the addressee avoiding to receive the letter or even refusing the registered letter." With respect to the learned Judge of the Mysore High Court it is not possible to accept this argument. The words "unless to the contrary" cannot be construed in such a narrow manner and full meaning to the words used must be given. Presumption under Section 27 can arise only on the proof of the conditions set out in first part of the section. The existence of each of the conditions is to be established by positive evidence and it is only then that the presumption under the section can arise. If the evidence on the record is insufficient to establish any one of the conditions the presumption cannot arise. The conclusion is that when it is proved that the registered letter with prepaid stamps containing the document has been posted at the proper address of the addressee, a prima facie presumption arises viz, that the notice was served, meaning thereby, that the letter reached its destination at the proper time according to the regular course of business of the post office and it was received by person to whom it was addressed. Dealing with this question. Their Lordships of the Privy Council in Harihar Benerji v. Ramsashi Roy, 45 Ind App 222 : 21 Bom LR 522 : ( AIR 1918 PC 102 ) observed: "........ if a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed. That presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precaution to register........ " The same conclusion was arrived at in Baluram v. Bai Pannambai, (1911) ILR 35 Bom 213. As the presumption is rebuttable, it can be shown by leading reliable evidence by the addressee that the letter was never delivered to him in fact in which case it will be held that there was no service. Thus the presumption which arises under the section stands rebutted. As the presumption is rebuttable, it can be shown by leading reliable evidence by the addressee that the letter was never delivered to him in fact in which case it will be held that there was no service. Thus the presumption which arises under the section stands rebutted. No general rule can be laid down as to what evidence can be regarded as sufficient to rebut the presumption arising under Section 27 of the General Clauses Act. In the case Roopchand Rangildas v. Haji Hussain Haji Mahomed, (16 Born LR 204 : AIR 1914 Bom 31), Mr. Justice Beaman after referring to the provisions of Section 27 came to the conclusion that a prima facie presumption of service arises under Section 27 and observed as under: "Thus it lies on the defendant in this case to prove that it was not delivered. I think for all practical purposes that the point is actual delivery, and that the defendant may not take advantage of his own refusal to accept delivery when tendered. That is to say if the summons in a registered cover be tendered to, and refused by, him, be refuses at his own risk. Where he disputes the actual delivery or tender of delivery, it is a mere question of fact, and the onus is on him." This decision completely supports our aforesaid conclusion. 4. It was then argued that the very fact that an unopened registered letter has been received back, by itself shows that Section 27 of the General Clauses Act cannot come to any assistance or the said circumstance is sufficient evidence to rebut the presumption that arises under the said section. It was contended that when an unopened envelope is before the Court, can it be said the service thereof can be deemed to have been effected? The very fact of an unopened cover being before the Court negatives the deemed fiction. The arguments are no doubt at first sight attractive but have to stand the test of scrutiny. The legal fiction incorporated in Section 27 is that when a letter prepaid, properly addressed and is sent through registered post then it shall be deemed to have been served at the time when the letter would be delivered in the ordinary course of post. The legal fiction incorporated in Section 27 is that when a letter prepaid, properly addressed and is sent through registered post then it shall be deemed to have been served at the time when the letter would be delivered in the ordinary course of post. When a statute enacts that something shall be deemed to have been done which in fact and truth was not done the Court is entitled and bound to ascertain what the purposes and between what person the statutory fiction is to be resorted and full effect should be given to the statutory fiction and it should be carried to its logical conclusion. The statute directs the Court to imagine certain state of affairs; it does not say having done so the Court should permit imagination to boggle when it comes to the inevitable corollaries of that state of affairs, vide State of Bombay v. Pandurang Vinayak, AIR 1953 SC 244 . The purpose why the fiction has been raised under Section 27 is to do away with the proof of service and thus avoid inconvenience and expenses when certain conditions are fulfilled by a sender of a registered letter. In prefer to achieve this object the legislature has a recourse to the public department, namely, the post office and enacted that when prepaid registered letter properly addressed has been handed over to the postal authority, it must be taken that it is duly delivered, as letters in the ordinary course are duly delivered. A letter so posted, is to be taken to have been received by the addressee unless the contrary is proved, may happen that when a notice is not received there would be hardships to an individual but looking at the provisions of Section 27, the legislature did intend that the burden must fall on the addressee. The object of the provisions of Section 27 is to ease the burden on a person who sends a registered letter and fulfils the conditions laid down in Section 27. The legislature transfers in such cases the burden to prove non-delivery on the addressee. This is so, because in great majority of cases actual delivery of notice by registered letter is achieved and only in exceptional cases it will be otherwise. On the proof that the letter was properly addressed, prepaid, registered and put into post office, the rest follows without further proof viz. This is so, because in great majority of cases actual delivery of notice by registered letter is achieved and only in exceptional cases it will be otherwise. On the proof that the letter was properly addressed, prepaid, registered and put into post office, the rest follows without further proof viz. that the document has been served upon and received by the addressee. The Court has to give effect to the presumption that arises under Section 27 even in a case where the registered letter has been returned unopened. A registered letter may be returned back to the sender for various reasons. To illustrate, when the addressee's house is found to be closed or he is out of place or has left the house or refuses to accept. Thus mere fact of the return of a registered letter which may be produced in the Court cannot lead to the lone conclusion that the service had not been effected. The normal rule of construction is that the evidence must be read as a whole. The provisions of the Post Office Act and Rules show that a registered letter with an acknowledgment due can only he returned with an endorsement either of 'not found' or 'not claimed' or 'Refused' etc. The registered envelope must be read as a whole and not in part. The Court cannot, therefore, rely upon the circumstance of the return of the envelope only as that will be tantamount to reading the evidence in part. The Court is bound to raise a presumption of delivery under Section 27 of the General Clauses Act even in a case where the registered letter is received back without endorsement as the statutory fiction has to be taken to its logical end. So far as the endorsement of either 'not found' or 'not claimed' or 'refused' is concerned, the Court has to take notice of Section 114 of the Indian Evidence Act which provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations (f) and (f) to the section explain the said provisions, It is provided in illustration (e) that Court may presume that judicial and official acts have been regularly performed. Illustrations (f) and (f) to the section explain the said provisions, It is provided in illustration (e) that Court may presume that judicial and official acts have been regularly performed. Illustration (f) provides that the Court may presume that the common course of business has been followed in particular cases. We may also refer to the Rules of the Indian Post Office framed under the Post Office Act relating to the registered articles. Rules 62, 63 and 64 (1) and (2) read as follows: "62. A receipt shall be given to the person who presents an article for registration at the post office window during the hours prescribed for posting registered articles. 63. No registered article shall be delivered to the addressee unless and until he or his agent has signed a receipt for it in such form as to the Director General shall prescribe. 64 (1). If the sender of a registered article pays at the time of posting the article a fee of ten naye Paise in addition to the postage and registration fee, there shall be sent to him on the delivery of the article a form of acknowledgment which shall be signed in ink by the addressee or his duly authorized agent or if the addressee refuses to so sign shall be accompanied by a statement to the effect that the addressee or his duly authorised agent has refused to so sign: Provided that no fee shall be payable in respect of a registered 'Blind Literature' packet for which an acknowledgment is required. (2) No article for which an acknowledgment is required under sub-rule (1) shall be accepted for registration unless it bears the name and address of the sender and is accompanied by a prescribed form of acknowledgment duly filled in and securely fastened to such article, and unless the article bears the superscription Acknowledgment Due on the address side." Paragraph 191 of the Posts and Telegraphs Manual, Vol. VI provides the manner in which the refused registered article shall be dealt with and the relevant portion thereof provides that inland registered articles or the letter mail which are refused by the addressee and which have the name and address of the sender clearly written on them, should not be kept in deposit, but should be marked "Refused" and sent by the first post with the acknowledgment, if any, to the office of posting for delivery to the sender. These provisions indicate the regular course of business in the post office. When a registered letter is handed over to the receiving post office, it is the official duty of the postal authority to make delivery thereof to the addressee. Consequently it is legitimate to expect that a registered letter would be delivered in normal course to the addressee as that is the official and normal function of the post office. Once the article is delivered to the post office it remains with it unless it is delivered to the addressee or returned to the sender and there is no scope for any person to intermeddle with the letter. When the letter is refused by the addressee an endorsement thereon is made by the post-man and he does so in discharge of his duties. Taking into consideration the manner in which the post office deals with a registered letter, the endorsement on a returned unopened envelope of refusal raises a presumption that an attempt was made to deliver the notice to the addressee and he refused to sign the receipt. The presumption of delivery which arises under Section 27 of the General Clauses Act is in such cases strengthened by the presumption which arises under Section 114 of the Indian Evidence Act. The presumption that arises under Section 114 or the Indian Evidence Act is one of fact. It is not obligatory on the Court to raise a presumption under that section. The Court may refuse to do so, if the evidence on record or the circumstances of the case raise any doubt. The presumption that arises under Section 114 or the Indian Evidence Act is one of fact. It is not obligatory on the Court to raise a presumption under that section. The Court may refuse to do so, if the evidence on record or the circumstances of the case raise any doubt. It must be mentioned that it will facilitate the Court to raise a presumption under Section 114 of the Indian Evidence Act if evidence is led by the sender to the effect that the registered letter had no endorsement at the time when it was posted and that endorsement was in existence at the time when unopened registered letter was returned to him. If such evidence is on record it will greatly assist the Court in exercising its discretion of raising a presumption under Section 114 of the Indian Evidence Act. It is not possible to lay down a general rule when the Court should raise a presumption under the section or refuse to do so, each case must be decided on its own facts. If a registered letter is accepted by the addressee he would be deemed to have knowledge of its contents even if he never cared to read the same. On a parity of reasoning the addressee would be deemed to have knowledge of the contents of a registered letter when he refuses the receipt of it. The Court must be guided in each case by the special circumstances as to how far it will give effect to the endorsement on the returned cover. In our conclusion on the aforesaid points we are supported by the decisions in Gopal Raghunath v. Krishan, (1901) 3 Bom LR 420; Baluram v. Bai Pannambai, (1911) ILR 35 Bom 213; Appabhai Motibhai v. Laxmichand Zaverchand and Co., AIR 1954 Bom 159 ; Bai Shanta v. Khalas Ramjibhai Chhotalal, AIR 1956 Bom 144 ; Jugal kishore Jodhalal v. Bombay Revenue Tribunal, (60 Bom LR 1075 : AIR 1959 Bom 81 ); Shamsadhi Naga Pinjari v. Gunvantibai Ramsnehi, (1972) 74 Bom LR 723; Ganga Ram v. Smt. Phulwati, AIR 1970 All 446 (FB); Raunaq Ram v. Prabh Dayal, AIR 1930 Lah 439; Munni Devi v. Puspalata Mondal, (1967) 71 Cal WN 282; Ramayya v. Venkatachellamma, AIR 1953 Mad 834 ; Balbhadar Mal v. Commr, of Income Tax, Punjab, AIR 1957 Punj 284; and Mrs. Achamma Thomas v. E.R. Fairman, AIR 1970 Mys 77. The same view has been taken by J.B. Mehta, J. in Special Civil Appln. No. 617 of 1967, decided on 9-9-1970 (Guj) and myself in Second Appeal No. 629 of 1968 decided on 5-12-1968 (Guj). The presumption arising under Section 114 relates to an official act being done in a regular manner and if the Court is not in a position to raise such a presumption in respect of the endorsement, the Court should not exhibit the endorsement but exhibit only the returned envelope and in that case the evidence of returned envelope is itself sufficient to rebut the presumption of the letter being received by the addressee which arises under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act, Once presumptions arise under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act, the burden to rebut the said presumptions would be on the addressee in case where the letter is returned back with an endorsement of "Refused". One who challenges an endorsement made by the postal authority in discharge of the duties has to lead evidence to rebut the presumption arising because of the endorsement. The question then is one of rebuttal by leading evidence and such question can be raised only at the stage of trial of the suit. Such a question which depends upon leading evidence cannot be raised for the first time in appeal or revision. If the registered envelope containing the endorsement is received in evidence and marked as an exhibit in the case, the endorsement made thereon cannot be questioned in appeal or revision arising out of the suit in which the envelope is exhibited. 5. On behalf of the tenants reliance was sought to be placed on the decision in Vaman Vithal v. Khanderao Ram Rao, AIR 1935 Bom 247 : 37 Bom LR 376, and particularly on the following passage occurring in the judgment of Beaumont, C. J.: "In the case of defendants 4 and 5 a registered letter containing the notice was sent to them duly addressed, and service is alleged to have been refused. In fact the refusal was not proved, as the postman who took the letter and brought it back was not called. In fact the refusal was not proved, as the postman who took the letter and brought it back was not called. But in any case, even if the refusal had been proved, I should not be prepared to hold that a registered letter tendered to the addressee and refused and brought back unopened, was well served. There are, I know, some authorities in this Court to the contrary, but it seems to me impossible to say that a letter has been served so as to bring the contents to the notice of the person to whom the letter is addressed, if the agent for service states that in fact the notice was not served, although the reason may have been that the addressee declined to accept it. One cannot assume that because an addressee declines to accept a particular sealed envelope he his guessed correctly as to its contents. Many people in this country make a practice of always refusing to accept registered letters, a practice based, I presume, on their experience that such documents usually contain something unpleasant. So that, it is clear that this notice was not served on three of the defendants." It was also sought to be argued that unless the endorsement on the envelope is proved in the manner in which it is capable of proof, no presumption under Section 114 of the Indian Evidence Act can be raised and for this purpose reliance was placed on the decisions in Jankiram Narhari v. Damodhar Ramchandra, AIR 1956 Nag 266; Firm Ganeshdas Kishnaji v. Murlidhar, AIR 1956 Madh B 151; and Mahboob Bi v. Alvala Lachmiah, AIR 1964 Andh Pra 314. Now it appears that in the decision of Vaman Vithal Kulkarni (supra) the provisions of Sec. 114 of the Evidence Act were not brought to the notice of the Court. The observations made by Beaumont C. J. have been treated as obiter and doubted in two subsequent decisions of the Bombay High Court, vide, Babasaheb Appasaheb v. Laxmanappa Ramappa, (40 Bom LR 1015 : AIR 1938 Bom 492) and Venkatrao v. Vasavprabhu, (45 Bom LR 754 : AIR 1943 Bom 348). The observations made by Beaumont C. J. have been treated as obiter and doubted in two subsequent decisions of the Bombay High Court, vide, Babasaheb Appasaheb v. Laxmanappa Ramappa, (40 Bom LR 1015 : AIR 1938 Bom 492) and Venkatrao v. Vasavprabhu, (45 Bom LR 754 : AIR 1943 Bom 348). As pointed out earlier, from the manner in which the post office deals with the registered letter, it can be presumed by the Court under Section 114 of the Indian Evidence Act that the endorsement thereon was made by the postman in discharge of his official duties, and the said endorsement can be relied upon to raise presumption under Section 114 of the Indian Evidence Act, that the delivery of the registered letter was offered to the addressee and he refused to sign the receipt, in case where the endorsement is one of refusal. The Court can raise such a presumption on the basis of the endorsement of refusal in spite of the fact that evidence of the authority who made the endorsement is not led in the case. For the reasons already given we do not agree with the proposition of law laid down in the aforesaid decisions of the Bombay, Nagpur and Andhra Pradesh High Courts." The Full Bench summarized its conclusions as under: "(1) That on the proof of the facts that a prepaid, properly addressed letter containing the document was sent by a registered post, a presumption under Section 27 of the General Clauses Act or Section 28 of the Bombay General Clauses Act arises that the registered letter reached its destination at the proper time and was received by the addressee. (2) The words "unless the contrary is proved" govern both the parts of Sec. 27 for 28 of the said Act and the presumptions arising thereunder are rebuttable. (3) That the mere production in Court of an unopened envelope of a registered letter bearing an endorsement of refusal does not by itself rebut the presumption arising under Section 27 or 28 of the General Clauses Acts. (4) That the Court may raise a presumption under Section 114 of the Indian Evidence Act on the basis of the postal endorsement of refusal on the envelope that the registered letter was tendered to the addressee, that he refused to accept the same and that he knew the contents of the letter. (4) That the Court may raise a presumption under Section 114 of the Indian Evidence Act on the basis of the postal endorsement of refusal on the envelope that the registered letter was tendered to the addressee, that he refused to accept the same and that he knew the contents of the letter. The said presumption can be rebutted by the addressee leading evidence to the satisfaction of the Court. The provisions of section 12 of the Rent Act make no difference. If the envelope bearing the postal endorsement is marked as an exhibit in the lease, then question relating to the proof thereof cannot be raised for the first time in an appeal or a revision that is filed against the decree in the suit in which the envelope is exhibited. (5) That the Court may raise a presumption under Section 114 of the Indian Evidence Act on the basis of the postal endorsement marked on the envelope of a registered letter, even though the author thereof is not examined as a witness. (6) The presumption arising under Section 114 of the Indian Evidence Act relates to official acts being done in a regular manner and if the Court is not in a position to raise such a presumption in respect of the endorsement, the Court should not exhibit the endorsement but exhibit only the returned envelope and in that case the evidence of returned envelope is itself sufficient to rebut the presumption of the letter being received by the addressee which arises under Section 27 of the General Clauses Act or Section 28 of the Bombay General Clauses Act and Section 114 of the Indian Evidence Act." 57. Thus, the Full Bench of this Court, ultimately, took the view that on the basis of a mere endorsement of refusal found on the returned registered envelope without being substantiated by any evidence of the postal peon who went to deliver the letter, a statutory rebuttable presumption of fact that the addressee had in fact refused to accept the delivery of the letter can be raised under the provisions of Section 114 of the Indian Evidence Act. The aforesaid Full Bench decision of this High Court was later followed by a learned Single Judge of this Court in the case of Tekchand Bajaj vs. International Corporation reported in AIR 1982 Gujarat 235, wherein the learned Single Judge observed as under: "6. Mr. Ravani for the appellant-applicant invited my pointed attention to the judgment of the Supreme Court in the case of Puwada Venkateswara Rao v. Chidamana Venkata Ramana, AIR 1976 SC 869 for the purpose of showing that the judgment of the Bombay High Court in the case of Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani, AIR 1968 Bom 387 was accorded approval by the Supreme Court. All that the Supreme Court has stated is that "where a notice sent by a registered post is returned with endorsement as "refused", it is not always necessary to produce the postman who tried to effect service". The above observation of the Supreme Court runs counter to the arguments advanced vigorously by Mr. Ravani before me that the postman must be examined. The Supreme Court, however, made a further observation, which was pressed into service by Mr. Ravani. The Supreme Court observes "the denial of service by a party may be found to be incorrect from its own admission or conduct" and in this context the judgment of the Bombay High Court in Meghji Kanji's case (supra) was adverted to by the Supreme Court. It is, therefore, safe to conclude that after all, each case is to be decided on its own merits. In the facts before the Bombay High Court in Meghji Kanji's case (supra), there was flat denial on the part of the party to whom was attributed the service. The learned single Judge of the Bombay High Court held that examination of the postman in the light of the categorical denial by the defendant rebutted the presumption that would be available on a question of fact by recourse to S. 114 of the Evidence Act. What the Bombay High Court observed in that case, cannot be elevated to the position of a proposition of law that whenever a party sought to be served with the notice of summons denies the said service, examination of a postman must follow as a matter of course. 7. What the Bombay High Court observed in that case, cannot be elevated to the position of a proposition of law that whenever a party sought to be served with the notice of summons denies the said service, examination of a postman must follow as a matter of course. 7. The Full Bench of the Gujarat High Court had an occasion to examine this question in the case of Memon Adambhai Haji Ismail v. Bhaiya Ramdas Badiudas, AIR 1975 Guj 54 and this court has ruled that "on the basis of a mere endorsement of refusal found on the returned registered envelope without being substantiated by any evidence of the postal peon who went to deliver the letter, the statutory rebuttable presumption of fact that addressee had in fact refused to accept the delivery of the letter can be raised under the provisions of S. 114 of the Evidence Act." So to the extent Mr. Ravani's argument rested on the observation of the learned single Judge of the Bombay High Court in Meghji Kanji's case ( AIR 1968 Bom 387 ) (supra) the Full Bench judgment is a clinching answer. 8. Whether a summons has been served or could be presumed to have been served or not is essentially a question of fact. A presumption u/s. 114 of the Evi. Act is a matter of court's discretion. When the learned Judge, who was required to deal with this question of fact, was pleased to rely on S. 114 of the Evi. Act, he in the exercise of his powers of appreciation of evidentiary material, came to a factual conclusion. The appellate court has no doubt power to reassess the evidence and arrive at its own conclusion, but simply because the appellate court can possibly take the other view, it is not a ground for the appellate court to alter the finding of the court below. In the facts and circumstances of the case and particularly the circumstance that the address given by this appellant-applicant in the present application under O.9, R.13 of the Code is the very address at which summons was issued by the court, I see no difficulty in drawing the inference that the envelope containing summons of the court was tendered to this applicant and he had declined to accept the same. What was the address on the envelope is not actually before me, but Mr. What was the address on the envelope is not actually before me, but Mr. D.M. Shah for the original plaintiff showed me the copy of that cover and also the address of the defendant No. 1 given in the plaint and it is in these circumstances that I conclude that the address on the envelope containing the summons of the court was the very address, which the applicant has given in his application under O.9, R.13 of the Code." 58. A learned Single Judge of the Allahabad High Court in the case of Smt. Vandana Gulati v. Gurmeet Singh reported in AIR 2013 Allahabad 69, by placing reliance on the decision of the Supreme Court in the case of Puwada Venkateswara Rao (supra), held as under: "16. Section 114 of the Indian Evidence Act, 1872 provides that the Court may presume existence of certain facts, namely, where a letter is shown to have been posted in the common course of business and in the manner provided it may be presumed to have been served in the usual course unless interrupted by disturbance. 17. Section 27 of the General Clauses Act, 1872 explains the meaning of service by post. It provides that where any document is required to be served by post, its service shall be deemed to be affected by properly addressing, prepaying and posting it to the person concerned by registered post unless contrary is proved. 18. The above provision of the Indian Evidence Act, 1872 raises a presumption of fact and that of Section 27 of the General Clauses Act, 1897 a presumption of law. The cumulative effect of both the above provisions is that a letter/notice sent by registered post to the person concerned at the proper address shall be deemed to be served upon him in the due course unless contrary is proved. 19. The cumulative effect of both the above provisions is that a letter/notice sent by registered post to the person concerned at the proper address shall be deemed to be served upon him in the due course unless contrary is proved. 19. A Full Bench of this Court in Gangaram v. Phoolwati AIR 1970 Allahabad 446 (FB), inter alia, laid down that Section 106 of the Act provides for modes of service of notice and one of the mode being sending of notice by post, the provisions of Section 27 of the General Clauses Act, 1897 shall apply and if it is proved that a notice was sent by registered post in an envelope containing correct address of the tenant a presumption of law can be made that the notice had been served on the addressee. The Full Bench further accepted the view as expressed by their Lordships of this Court in an earlier decision to the effect that a notice sent by registered post and received back with the endorsement 'refused' would be presumed to be served in view of Section 27 of the General Clauses Act, 1897 and that such a presumption though rebuttable, the postman need not be examined to prove the endorsement, rather it is the duty of the person rebutting the presumption to lead evidence that the notice was not served upon him. 20. Even the Supreme Court in Puwada Venketeswara Rao v. Chidemana Venkata Ramana AIR 1976 SC 869 observed that where a notice by registered post is returned with endorsement 'refused' it is not always necessary to produce the postman who tried to affect the service. 21. In Har Charan Singh v. Shiv Rani and others AIR 1981 SC 1284 it was held that when a registered envelope is tendered by postman to the addressee and he refuses to accept it, presumption of due service arises and in such cases knowledge of the contents of the letter can always be imputed to the addressee. 22. 21. In Har Charan Singh v. Shiv Rani and others AIR 1981 SC 1284 it was held that when a registered envelope is tendered by postman to the addressee and he refuses to accept it, presumption of due service arises and in such cases knowledge of the contents of the letter can always be imputed to the addressee. 22. The Apex Court in Anil Kumar v. Nanak Chandra Verma AIR 1990 SC 1215 held that a bare statement of a tenant on oath denying receipt of the notice or that he has not refused to accept its delivery, is not sufficient to rebut the presumption of service which arises under Section 27 of the General Clauses Act, 1897 over ruling the decisions in Shiv Dutt Singh v. Ram Dass AIR 1980 All 280 and Jagat Ram Khullar and another v. Battu Mal AIR 1976 Delhi 111 to the effect that bare settlement of tenant denying service of notice was sufficient to rebut the presumption. 23. In Barindra Kumar Baruha v. ADJ, Allahabad 1999 (2) ARC 651 it was held that if a registered letter sent on the correct address is received back with the endorsement of refusal, no postman is required to be produced to prove its actual delivery or the presumption which arises in law. 24. Even in the case of Basant Singh and another v. Roman Catholic Mission AIR 2002 SC 3557 it was held that a bald statement that registered letter was not tendered to him without any material evidence in support would not be sufficient to rebut the presumption of law regarding service of letter. 25. A Division Bench of this Court in Ram Nath and others v. Angan 1984(2) ARC 290 held that where a registered envelope with correct address of the tenant is posted and the tenant refuses to take notice or it is returned with the endorsement "not met" the notice shall be deemed to have been properly served upon him and the landlord is not required to examine the postman. 26. The above view is fulfilled by the observations of the Supreme Court in M/s. Madan and Co. 26. The above view is fulfilled by the observations of the Supreme Court in M/s. Madan and Co. v. Wazir Jaivir Chand AIR 1989 SC 630 wherein it was remarked that when the postman is unable to deliver the letter/notice on repeated attempts either on account of the addressee 'not found' not in station, addressee is 'left or not met' the presumption of service arises as it is not possible for a landlord to ensure that the registered letter/notice sent by him is actually received by the tenant. 27. In the light of the above legal position, the argument that the endorsement "not claimed/not met" is not sufficient to prove deemed service of the notice cannot be accepted, particularly when there is no evidence to rebut the presumption of service which arises both on fact and law." 59. In Nirmalabala Debi v. Provat Kumar Basu [ (1948) 52 Cal WN 659], it was held, by the Calcutta High Court, that a letter sent by registered post, with the endorsement "refused" on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service. What was held there was that the mere fact that the letter had come back with the endorsement "refused" could not raise a presumption of failure to serve. On the other hand, the presumption under Section 114 of the Evidence Act would be that, in the ordinary course of business, it was received by the addressee and actually refused by him. This is also a correct statement of the law. 60. Having thoroughly examined the position of law as regards the service of summons, we shall now proceed to consider the provisions of Order IX Rule 13 of the C.P.C. Order IX Rule 13 reads as under: "R. 13. This is also a correct statement of the law. 60. Having thoroughly examined the position of law as regards the service of summons, we shall now proceed to consider the provisions of Order IX Rule 13 of the C.P.C. Order IX Rule 13 reads as under: "R. 13. Setting aside decree ex parte against defendant - In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Explanation.- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree." 61. It is evident from the above that an ex parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso, mandatory in nature. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. 62. The expression "Sufficient Cause" has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise its discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal and Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361 ; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi and Anr., AIR 1968 SC 222 ; Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540 ; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459 ) : (2010 AIR SCW 1788). 63. In Arjun Singh v. Mohindra Kumar and Ors., AIR 1964 SC 993 , the Supreme Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also: Brij Indar Singh v. Lala Kanshi Ram and Ors., AIR 1917 PC 156 ; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee and Ors., AIR 1964 SC 1336 ; and Mata Din v. A. Narayanan, AIR 1970 SC 1953 ). 64. While deciding whether there is a sufficient case or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr., AIR 2000 SC 2306 ; Madanlal v. Shyamlal, AIR 2002 SC 100 ; Davinder Pal Sehgal and Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. and Ors., AIR 2002 SC 451 ; Ram Nath Sao alias Ram Nath Sao and Ors. v. Gobardhan Sao and Ors., AIR 2002 SC 1201 ; Kaushalya Devi v. Prem Chand and Anr. (2005) 10 SCC 127 ; Srei International Finance Ltd. v. Fair- growth Financial Services Ltd. and Anr., (2005) 13 SCC 95 ; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054 ). 65. In order to determine the application under Order IX, Rule 13, CPC, the test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application. 66. In Tea Auction Limited vs. Grace Hill Tea Industry and Anr. (2006) 12 SCC 104: (2006) 9 SCALE 223 : ( AIR 2007 SC 67 ), the Supreme Court has held as under: "15. There cannot be a strait-jacket formula of universal application. 66. In Tea Auction Limited vs. Grace Hill Tea Industry and Anr. (2006) 12 SCC 104: (2006) 9 SCALE 223 : ( AIR 2007 SC 67 ), the Supreme Court has held as under: "15. ....A discretionary jurisdiction has been conferred upon the court passing an order for setting aside an ex parte decree not only on the basis that the defendant had been able to prove sufficient cause for his non-appearance even on the date when the decree was passed, but also on other attending facts and circumstances. It may also consider the question as to whether the defendant should be put on terms. The court, indisputably, however, is not denuded of its power to put the defendants to terms. It is, however, trite that such terms should not be unreasonable or harshly excessive. Once unreasonable or harsh conditions are imposed, the appellate court would have power to interfere therewith..... " 67. In Vijay Kumar Madan and Ors. v. R.N. Gupta Technical Education Society and Ors. (2002) 5 SCC 30 : ( AIR 2002 SC 2082 ), the Supreme Court has held as under: "8. Costs should be so assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by relegating back the proceedings to an earlier stage. The terms which the court may direct may take care of the time or mode of proceedings required to be taken pursuant to the order under Rule 7........ the court cannot exercise its power to put the defendant-applicant on such terms as may have the effect of prejudging the controversy involved in the suit and virtually decreeing the suit though ex parte order has been set aside or to put the parties on such terms as may be too onerous......... That condition in the order of the trial court having been set aside by the High Court, we are inclined to sustain the order of the High Court but subject to certain modification. In our opinion the High Court was justified in setting aside the condition imposed by the trial court in its order which was too onerous, also vague, uncertain and suffering from want of clarity. In our opinion the High Court was justified in setting aside the condition imposed by the trial court in its order which was too onerous, also vague, uncertain and suffering from want of clarity. The order of the High Court to the extent of setting aside the ex parte proceedings and directing the expeditious trial of the suit has to be sustained as it serves the ends of justice...." 68. Having regard to the materials on record and the position of law, we have reached to the conclusion that the Court below was not justified in allowing the application filed by the defendant under Order IX Rule 13 of the C.P.C. to quash and set aside the ex parte decree. First, the Court below in its impugned judgment has not assigned any cogent reasons, except the observation that it was not clear as to upon whom the summons was sought to be served. We fail to understand what is sought to be conveyed by the learned Single Judge. In our view, the Court completely failed to address itself on vital issue governing the law on Order IX Rule 13 of the C.P.C. The overall conduct of the defendant also is highly doubtful in view of certain statements made by the original plaintiff on oath. 69. In the aforesaid context, we may refer to a decision of the Supreme Court in the case of Mahesh Yadav vs. Rajeshwar Singh reported in 2009(2) SCC 205 , wherein the Supreme Court observed as under: "14. The judgment of the High Court, therefore, in our opinion is not sustainable. While, however, saying so, we must express our dissatisfaction in the manner in which the learned Civil Judge has passed the order impugned before the High Court. The said order is an unreasoned one. The evidence adduced on behalf of the appellants were not analysed for arriving at a finding as to whether a case for setting aside an ex parte decree has been made out by the appellants or not. The matter had not been considered as is required in terms of Order IX, Rule 13 of the Code of Civil Procedure. An order setting aside the ex parte decree being a judicial order should have been supported by reasons. The matter had not been considered as is required in terms of Order IX, Rule 13 of the Code of Civil Procedure. An order setting aside the ex parte decree being a judicial order should have been supported by reasons. The learned Judge could not have allowed the said application without following the legal principles on the basis whereof such an order could be passed." 70. The message of the Supreme Court in the form of dictum is loud and clear. The Supreme Court took notice of the fact that the order quashing and setting aside the ex parte decree passed by the Civil Judge was an unreasoned one. The Supreme Court observed that an order setting aside the ex parte being a judicial order should be supported by reasons. The Supreme Court also observed that the Civil Judge could not have allowed the application under Order IX Rule 13 of the C.P.C. without following the legal principles on the basis whereof such an order could be passed. The Supreme Court also criticized the order passed by the Civil Judge on the ground that the evidence adduced on behalf of the appellant were not analysed for arriving at a finding as to whether a case setting aside an ex parte had been made out or not. The Supreme Court, ultimately, observed that the matter had not been considered by the Civil Judge as was required or as is required in terms of Order IX Rule 13 of the C.P.C. All the aforesaid principles are directly applicable in the facts of the present case. We have no hesitation in recording a finding that the Court below failed to apply the correct principles of law for the purpose of setting aside an ex parte decree. We have no hesitation in holding that the Court below failed to consider the matter as was required in terms of Order IX Rule 13 of the C.P.C. 71. Mr. Trivedi, the learned senior counsel appearing for the defendant submitted that the consequences are too harsh and severe, in case the ex parte decree is allowed to stand without the defendant being given a fair and reasonable opportunity to defend himself. Mr. Trivedi, the learned senior counsel appearing for the defendant submitted that the consequences are too harsh and severe, in case the ex parte decree is allowed to stand without the defendant being given a fair and reasonable opportunity to defend himself. In this connection it may be stated that the petitioner moved the application for setting aside the ex parte decree solely on the ground that the summons was not duly served on him and that no registered letter was offered to him by the postman. On facts, it has been found that the petitioner refused to accept the registered letter and that the summons was duly served. No other reason has been stated by the petitioner which prevented him to appear when the suit was called for hearing. Under Order 9, Rule 13, C.P.C., the ex parte decree can be set aside either when the summons has not been duly served or when the defendant was prevented by any sufficient cause from appearing when the suit was called upon for hearing. As stated above, the summons had been found to be duly served and so this ground is not available to the defendant for setting aside the ex parte decree and no other ground had been taken by him, which prevented him to appear. Thus, in such circumstances, the Court ought to have rejected the petitioner's application for setting aside the ex parte decree. No premium could have been put on the willful conduct of default of appearance by the defendant. 72. Mr. Trivedi also submitted that this being a petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, unless a jurisdictional error or material irregularity is pointed out, the Court may not disturb the impugned order. Mr. Trivedi further submitted that in fact, the petitioner is not justified in invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India as the petitioner could have preferred a civil revision application under Section 115 of the C.P.C. 73. In the matters of the present type, ordinarily, it would be argued on behalf of the respondent while defending the impugned order that the scope of interference under Article 227 of the Constitution is limited. In the matters of the present type, ordinarily, it would be argued on behalf of the respondent while defending the impugned order that the scope of interference under Article 227 of the Constitution is limited. It would be argued that the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate Courts and Tribunals within bound of their authority, and not for correcting mere errors. It would also be argued that a mere wrong decision, without anything more, is to attract jurisdiction of High Court under Article 227 of the Constitution. The supervisory jurisdiction conferred under the said Article is limited seeing that an inferior Court of Tribunal functions within the limits of its authority. In exercising the supervisory power, the High Court does not act as an Appellate Court. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors in the decision. Ordinarily, it would be argued that the power of superintendence being extraordinary is to be exercised most sparingly and only in appropriate cases. 74. The constitution of this country which has sought to secure justice to the citizens as a top priority, has, for this purpose, vested in the High Courts very wide power of judicial supervision and superintendence overall the Tribunals and subordinate Courts in the State. Derived as it is directly from the Constitution, which is the fountain source and parent of all laws and statutes in this Republic, this power imposes on the High Court a grave and sacred responsibility for the entire administration of justice and invests in it an unlimited and unfathomable reserve of judicial power of supervision and control over all the Courts and Tribunals in the State concerned, which reserve can easily be drawn upon and utilised if the interests of justice so demand. The limitation on this power is only to be found in the Constitution itself and it is self-imposed by the High Court. The limitation on this power is only to be found in the Constitution itself and it is self-imposed by the High Court. This Court being the custodian of all justice within its territorial limits, the Constitution has armed it with an effective weapon to be wielded to ensure that even-handed justice is meted out equitably, fairly and properly; for this purpose no external limits, fetters or restrictions have been placed on this power by the express language of the Article. It is true that this power cannot be construed to confer an unlimited and arbitrary prerogative to interfere for setting right all errors of fact and law; it is to be exercised only according to the well-recognised judicial principles and with restraint and caution. 75. It is designed to restrain the excesses by the subordinate Courts and Tribunals and to obviate their denial or miscarriage of justice and it is to be exercised most sparingly and only in appropriate cases. But at the same time it must be exercised when the conscience of the Court is pricked, and it may not only legitimately interfere but is enjoined to do so to set right gross dereliction of duty by the subordinate tribunals, which has resulted in the miscarriage of justice. The case on hand is one in which our conscience is pricked. The slipshod manner in which the Court below dealt with the entire issue has pricked our conscience and we must set aright the illegality. 76. If this Court comes to the conclusion that the Court below has not given a fair deal to the plaintiff or the plaintiff has been dealt with arbitrarily or unfairly, there are no technical limitations which should stand in the way of this Court to see that the justice is done. The Constitution has trusted the wisdom and good sense of this Court by conferring on it this power of judicial supervision and superintendence, and this by itself has been considered to be a sufficient safeguard and guarantee that the power would be used only to advance the cause of real and substantial justice. The word 'justice' in the words of Sir Alfred Denning means "what the right-minded members of the community having the right spirit within them believe to, be fair". 77. We shall now look into the case laws relied upon by Mr. Trivedi in support of his submissions. 78. The word 'justice' in the words of Sir Alfred Denning means "what the right-minded members of the community having the right spirit within them believe to, be fair". 77. We shall now look into the case laws relied upon by Mr. Trivedi in support of his submissions. 78. In Sunder Spinner vs. Makan Bhula reported in ILR (1922) Bom 130, the Bombay High Court held that service by registered post is at any time a poor substitute for personal service, which is directed by the Court. Norman Macleod, C.J. observed that while His Lordship was sitting on the Original Side, His Lordship invariably allowed a defendant a retrial, if, after the decree had been passed against him on evidence that the summons was sent by registered post and returned refused, he appeared and denied that the packet had ever been delivered to him by the postal authorities. This decision, in our opinion, is of no avail to the defendant, except the observations of the Court that the service by registered post is a poor substitute for personal service. The law on the subject has progressed a lot over a period of years. The decision of the Bombay High Court is of the year 1922. 79. In Apabhai Motibhai Patel vs. Laxmichand Zaverchand and company reported in ILR (1954) Bom 243, Chief Justice M.C. Chagla referring to and relying upon the decision in the case of Sunder Spinner (supra) held as under: "In this particular case the trial Court held an inquiry and declared that the summons had been duly served. Mr. Shastri's contention is that once an inquiry is held as contemplated by this rule and once & declaration is made by Court, that declaration becomes conclusive and the summons must be' held to have been duly served, and says Mr. Shastri that if the summons was duly served, then it is not open to the defendant to challenge the ex-parte decree on the ground that the summons was not duly served. Under O. IX, r. 13 a defendant may apply to the Court which passed the ex-parte decree for an order to set it aside, and if he satisfies the Court that the summons was not duly served the Court shall make an order setting aside the decree. Under O. IX, r. 13 a defendant may apply to the Court which passed the ex-parte decree for an order to set it aside, and if he satisfies the Court that the summons was not duly served the Court shall make an order setting aside the decree. Therefore, it is for the Court which hears the application to set aside the ex-parte decree to be satisfied that the summons was not duly served. That Court is not bound by the decision given by the trial Court. The decision of the trial Court as to the sufficiency of service is only for the purpose of passing the ex-parte decree. It is not a decision which can possibly bind the defendant because the inquiry was held ex-parte and the defendant was not represented at that inquiry. Notwithstanding the inquiry under O. V. r. 21A it is open to the defendant to satisfy the Court to which he has made an application for setting aside the ex-parte decree that the summons was not duly served upon him. In a case where service is by registered post, he can satisfy the Court that the summons was not duly served, if he has not acknowledged the receipt of the summons on the registered packet, by showing that the statement on the registered packet that he had refused service of the summons was not correct. In this case the only evidence of service of the summons is the endorsement on the registered packet. The endorsement is made by the postman and the defendant comes before the Court and says that he was not in Ahmedabad at the material time. There is no other evidence on record. Under these circumstances the decision in Sunder Spinner v. Makan Bhula directly applies. O. V, r. 21A merely deals with the mode of service. As to whether a service is proper or not, where the service is effected by registered post, must be determined by the principle enumerated by Sir Norman Macleod and Mr. Justice Shah in Sunder Spinner v. Makan Bhula, and in my opinion that principle is perfectly sound. Ordinarily, service must be effected personally upon a defendant. Order V, r. 21A gives a special facility to the Court in these modern days to effect service by registered post. Justice Shah in Sunder Spinner v. Makan Bhula, and in my opinion that principle is perfectly sound. Ordinarily, service must be effected personally upon a defendant. Order V, r. 21A gives a special facility to the Court in these modern days to effect service by registered post. But even so that convenience must be properly circumscribed so as not to defeat the ends of justice, and it would be a very serious thing if a defendant was not entitled to have an ex-parte decree set aside although that decree was passed on an endorsement made by a postman that the packet had been offered to the defendant and he had refused it. Therefore, in my opinion, the Courts below were wrong in refusing to set aside the ex-parte decree on the application made by the defendant." His Lordship reiterated that ordinarily, service must be effected personally upon a defendant. This decision also, in our opinion, is of no avail to the defendant. 80. In B.S. Mahajan vs. Chapsey R. Mistry reported in (1988) 3 Bom CR 535, a learned Single Judge of the Bombay High Court observed as under: "8. So far as serving by registered post is concerned, admittedly, the packet has come back with the various postal remarks enumerated hereinabove. Mr. Damle then referred to the fact of the notice having been sent by ordinary post and having not been received back, placing reliance of the presumption that it must have been received by the addressee thereof; but Mr. Damle fairly conceded that this presumption was not an irrebuttable presumption. Mr. Abhyankar in this context, invited my attention to the decision reported in Meghji, Kanji Patel v. Kundanmal Chamanlal Mehtani, which underlines that the presumption in question was not irrebuttable, clarifies that it is undoubtedly for the defendant to satisfy the Court that the letter was not tendered to him and goes on to say the on a statement on oath by the addressee that such letter was not tendered it him, the same stands rebutted. On the question of the manner of rebuttal, the said judgments states "But the defendant can only do so by making a statement on oath. On the question of the manner of rebuttal, the said judgments states "But the defendant can only do so by making a statement on oath. This must usually remain uncontroverted, unless the postman, who tendered the letter to him, is summoned and makes a statement that he tendered the letter cover containing the summons to the defendant and after cross-examination, his evidence is believed. If the plaintiff does not summon the postman, the statement on oath of the defendant remains uncontroverted and, in such a case there is sufficient ground for setting aside the ex parte decree." A reference is in the said judgment to the decision of the Chief Justice Chagla reported Appabai Motibhai v. Laxmichand Zaverchand and Co., reaffirming the same principle. The respondent both in his written statement and in his evidence has in terms denied having received such notice through post or otherwise and the said denial remains uncontroverted. Mr. Damle's argument in this behalf, therefore, fails. This takes me to the other three modes of service--- (a) by tender or delivery personally to the respondent, (b) to one of his family or servants (at his residence) and if such tender or delivery is not practicable, (c) by affixing to a conspicuous part of the said property." 81. The ratio of the aforesaid decision of the Bombay High Court that the presumption can be rebutted by just making a statement that he had not received the post is no longer a good law in view of many Supreme Court decisions we have referred to above and relied upon. 82. In the result, this petition succeeds and is hereby allowed. The impugned order passed by the Court below is hereby quashed and set aside. However, it shall be open for the respondent to prefer an appeal against the ex parte decree under Section 96(2) of the C.P.C. or to apply for review under Order 47 Rule 1 or file a suit on the ground of fraud, if any.