BASANT SINGH AND ANR.versusROMAN CATHOLIC MISSION

A                         BASANT SINGH AND ANR.
                                         V.

                         ROMAN CATHOLIC MISSION
                                                                                     .
                                OCTOBER 3, 2002
B
                   [Y.K. SABHARWAL AND H.K. SEMA, JJ.]


         Civil Pr.ocedure Code, 1908: Order 5 Second proviso to Rule 19A and
    Order; 9 R11le I 3:
c         Substituted Service-Trial Court directed substituted service by ordering
    publication of summons in a certain local daily newspaper-Publication of
    summons in another local daily-Effect of-Held, it amounts to mere
    irregularity in service of summons-However, it is inherently probable that
    publication of summons in another local daily with wide circulation in the
D   area would have constituted sufficient notice to the defendants.

          Service ofNotice-Proof of-Presumption-Discussed--General Clauses
    Act, 1897: Section 27.

          Respondent-landlord filed a suit against the appellant-tenants. Trial
E   Court ordered issue of summons to tenant-appellant both by ordinary
    process and by registered post. Awaiting receipt of the service report,
    Court again ordered issue of summons and also substituted service by
    publication of summons in a certain local daily newspaper. However,
    summons were published in another local daily. Appellant did not turn
p   up, and Court passed an ex-parte decree. Subsequently, the Court rejected
    the application flied by the appellant for setting aside ex-parte decree.
    Appeal thereon and Revision Petition were rejected by the High Court.
    Hence this appeal.

          It was contended for the appelia11t that the Trial Court acted in
G   violation of the procedure prescribed under Order 5, CPC; and that since
    Trial Court did not pass any order of it!; satisfaction that defendant was
    avoiding the service, it ought not to hav1e ordered substituted service.

          Dismissing the appeal, the Court

H                                         70
               BASANTSINGHv. ROMAN CATHOLIC MISSION                        71

      HELD: 1. Once it is proved that summons were sent by registered            A
post to a cotrect and given address, the defendants' own conduct becomes
important. The premises in question is occupied by two defendants jointly-
one appeared and examined himself stating that he did not receive the
registered letter. However the other defendant did not appear and no
evidence whatsoever, on his behalf, has been led to rebut the presumption        B
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. In regard to other defendant, 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            C
discharge the onus cast upon him by the Statute. It is inherently
improbable that the registered summons were duly served on one of the
tenants but not to other when they occupied the tenanted premises jointly.
                                                           174-D, E, F, GI

      2.1. The Court's satisfaction that defendant is avoiding the service       D
is implicit in the order directing service by publication. 173-8)

      2.2. It is inherently probable that publication in the other local daily
which is also widely circulated in the area would have constituted sufficient
notice to the defendants. The publication of the substituted service in the      E
local daily other than the one which is ordered by the Court is mere
irregularity in service of summons. Second proviso to Order 9 Rule 13
casts an embargo on the Court that a decree passed ex-parte shall not be
set aside merely on the ground that there has been an irregularity in the
service of summons. 173-F; H; 74-A)
                                                                                 F
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6489 of
2002.

     From the Judgment and Order dated 13.9.2000 of the Madhya Pradesh
High Court in C.R. No. 416 of 1998.
                                                                                 G
      M.L. Lahoty, Sushi! Kr. Jain, Ms. Pratibha Jain and Paban K. Sharma
for the Appellants.

        S.K. Gambhir and R.K. Maheshwari for the Respondent.

        The Judgment of the Court was delivered by                               H
    72                        SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A         SEMA, J. Leave granted.

          The sole question that falls for consideration in this appeal is, whether
    the service of notice sent by registered post with acknowledgement card in
    terms of Order 5 second proviso to Rule 19A of the Code of Civil Procedure
    read with Section 27 of the General Clauses Act, 1897 can be accepted as a
B   sufficient notice.

         This appeal filed by the defendants (judgment debtors) arises out of the
  following material facts. Suit No 473 of 1985 filed by the landlord ended in
  passing of an ~x-parte decree by the Trial Court on 30.5.1986. The appellants
C preferred' an application on 6.10.1986 under Order 9 Rule 13 for setting aside
  the ex-parte decree which was rejected by the Trial Court. Their appeal
  before the appellate court and revision petition before the High Court ended
  without any success. It appears, initially the plaintiff (respondent herein)
  could not deposit the requisite process fee for which the summons could not
  be issued to the appellants-defendants. On 2.4.1986, the Trial Court ordered
D the summons to be issued to the defendants, both by ordinary process and by
  registered post, and the case was adjoui:ned to 30.4.1986. On a perusal of the
  record, and not disputed by the parties, we find that the registered notices
  were issued to the defendants vide postal receipt Nos. 875 and 876 dated
  24.4.1986. As on 30.4.1986, summons issued by registered posts were not
E received back, the case was adjourned to 30.6.1986 awaiting the receipt of
  the service report. On 30.6.1986, the Trial Court again ordered that fresh
  summons both by ordinary post and registe:red post be issued within three
  days. The Trial Court also ordered substitut,ed service by resorting to Order
  5 Rule 20 C.P.C. by publications of summons in local daily "Dainik Bhaskar".
  On 5.8.1986, it appears that a notice of publication in daily newspaper
F "Aacharan" instead of "Dainik Bhaskar" as ordered by the Court has been
  produced. This is one of the grievances of the appellants, which we shall be
  dealing at appropriate place. On 22.8.1986, the Trial Court. passed an order        l
  to proceed ex-parte and fixed the case for 4.9 .1986 for evidence of the
   plaintiff. As the date fixed - 4.9.1986 was declared a public holiday, the
G plaintiffs witness was examined on 5.9.1986 and the ex-parte judgment and
  decree was passed on 30.9.1986. It is stated that the appellants came to know
  of the ex-parte decree on 1.10.1986 and filed an application on 6.10.1986 of
   setting aside the ex-parte decree, as noticed above.

          Learned counsel for the appellants contended that the Trial Court has
H acted in violation of the procedure prescribed under Order 5 of the Code of
         BASANT SINGH v. ROMAN CATHOLIC MISSION [SEMA. .I.)                      73
Civil Procedure, in issuing summons to the defendants. He further contended            A
that the substituted service can be restored to only when the court is satisfied
that the defendant is avoiding the service or the service cannot be effected in
an ordinary way. The Trial Court having not passed any order about the
satisfaction as envisaged under the Code, it was not open to the Trial Court
to order for substituted service. This submission need not detain as any longer.
On the facts of the case the court's satisfaction is implicit in the order directing   B
service by publication.

      Order 9 Rule 13 of Code of Civil Procedure insists that the applicant
must satisfy the court two conditions (a) that the summons was not duly
served and (b) that the applicant was prevented by any sufficient cause from           C
appearing before the court when the suit was called on for hearing. In present
case second condition is not attracted.

        Regarding the contention of the counsel for the appellants that the
summons were not duly served, as the substituted service has been published
 in the local daily "Aacharan" instead of "Dainik Bhaskar", we may point out           D
that it is in the evidence on record that both "Aacharan" and "Dainik Bhaskar"
are the local dailies and are widely circulated in the area. In ordinary
circumstances, if both the local dailies are widely circulated in the area the
change of the name of the local daily from "Dainik Bhaskar" to "Aacharan"
would not materially affect the service of notice by way of substituted service,
deemed to have been served, and would not invalidate the effect of substituted         E
service just because the notice for substituted service has been published in
the local daily which is not ordered by the court. It is the specific contention
of the plaintiff-respondent that the notice has been published in the local
daily "Aacharan" on 9.8.1986 and the said local daily is widely circulated in
the area and the substituted service would construe as sufficient notice upon          p
the defendants. We are also of the view that it is inherently probable that
publication in the local daily "Aacharan" which is widely circulated in the
area would have constituted a sufficient notice to the defendants.

      Before the Trial Court the stand taken by the plaintiff was that the
defendants had knowledge about the suit filed by the plaintiff and they had G
sufficient time to appear and answer the plaintiff's claim but they did not
appear and the application had been filed with intention to cause the delay.
Be that as it may, we are of the view that the publication of the substituted
service in the local daily "Aacharan" instead of "Dainik Bhaskar" is a mere
irregularity in service of summons.
                                                                                       H
    74                        SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A          Second proviso to Order 9 Rule 13 casts an embargo on the court that
    a. decree passed ex-parte shall not be set aside merely on the ground that
    there has been an irregularity in the servict~ of summons.

          Order 5, proviso to sub-rule (2) of Rule I 9A of C.P.C. provides that
    where the summons are properly addressed, prepaid and duly sent by registered
B   post with acknowledgement due, notwithstanding the fact that the
    acknowledgement 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,
    Section 27 of the General Clauses Act, 1897 (in short 'Act) provides similar
C   provision. The presumptions are rebuttable. It is always open to the defendanis
    to rebut the presumption by leading convincing and cogent evidence.

           It is nobody's case that the postal addresses of the defendants are not
    properly addressed and, therefore, the register.ed summons could not be served.
    It is also nobody's case that the registered summons are not pre-paid and not
D   duly s~nt. In fact the registered summons, bearing receipt Nos. 875 and 876
    dated 24.4.1986, were issued is borne out from the record.

         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 appe'liants were allowed to lead evidence in support
E of their contentions. An 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
F been led. to rebut the presumption in regard to service of summons sent to
  him under registered post with acknowledgm1mt 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
G 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 BasanfSingh but not to Hari Singh when they occupied the tenanted
  premises jointly.

H         As noticed above, the registered summons were sent to Basant Singh
              BASANT SINGH v. ROMAN CATHOLIC MISSION [SEMA, J.]              75
     and Hari Singh vide postal receipt Nos. 875 and 876 dated 24.4.1986 on the A
     correct and given address is borne out from the record. Ex-parte proceedings
     were ordered on 22.8.1986 and ex-parte decree was passed on 30.9.1986.

          ln the facts and circumstances as noticed above, this appeal is devoid
     of merit and it is, accordingly, dismissed. No costs.
                                                                                   B
     S.K.S.                                                   Appeal dismissed.




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