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CASE NO.: Appeal (civil)  438 of 2007

PETITIONER: Indu Bhushan                                                    \005..Appellant

RESPONDENT: Munna Lal and Anr.                                              \005.Respondents

DATE OF JUDGMENT: 02/02/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No. 25636 of 2004)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is to the judgment rendered by a  learned Single Judge of the Allahabad High Court dismissing  the appeal filed by the appellant.  In the said appeal the order  passed by 11th Additional District & Sessions Judge, Varanasi,  rejecting the application filed by the appellant for restoration  of the appeal in terms of Order XLI Rule 21 of the Code of Civil  Procedure, 1908 (for short ’CPC’) was rejected.

       Background facts in a nutshell are as follows:                                                                                                       Respondent No.1-Munna Lal instituted a suit for specific  performance of the contract dated 6th March, 1992.  The  agreement was allegedly executed by Smt. Krishna Devi,  mother of the appellant and respondent no.2 who were the  appellants before the High Court.  The said Smt. Krishna Devi  expired during the pendency of the suit before the Trial Court.   According to the plaintiff, out of the total sale consideration of  Rupees one lakh, Rs.25,000/- was given on 2nd March, 1992  and another sum of Rs.15,000/- was given on 6th March,  1992.  It was stipulated in the agreement that the sale deed  shall be executed by the Vendor after she obtained permission  from the authorities under the Urban Land Ceiling Act, 1976  (in short ’ULC Act’).  As Vendor failed to execute the sale deed  the suit for specific performance was filed.  The suit was  dismissed by the Trial Court on 3rd August, 2002.  The  judgment and decree were challenged by respondent no.1 by  filing Civil Appeal no.109/2002.  The said appeal was allowed  as ex-parte on 11th July, 2003 by the First Appellate Court.   An application was filed by the present appellant and the  respondent no.2 to set aside the ex-parte decree passed by the  Courts below. The said application was filed in terms of Order  XLI Rule 21 CPC which was rejected by the First Appellate  Court.  

The only ground which was urged in support of the  appeal/application as the case may be before the First  Appellate Court and the High Court was that there was no  service of notice through process server or by registered post.  

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It was contended that the information regarding decision of  the appeal came to knowledge of the appellant before the High  Court on 28th July, 2003 when the notice of caveat application  filed before the High Court by respondent no.1 was received.   It was averred that the reports of the process server were not  correct. The notice by registered post was not served. In fact,  there was no refusal as was made out by the plaintiff- respondent no.1.  The postman who was examined clearly  stated that there was no refusal by the appellant and the  present respondent no.2.         

       The First Appellate Court analysed the factual position  and placing reliance on the decision of this Court in State of  M.P. v. Hiralal and Ors. (1996 (7) SCC 523), held that there  was valid service of the notice sent by registered post. Further  the evidence of the process server clearly established that  notice has been served.  The High Court dismissed the appeal  finding that there was valid service of the notice regarding  hearing of the appeal before First Appellate Court.  

       In support of the appeal, learned counsel for the  appellant submitted that the First Appellate Court and the  High Court clearly proceeded on erroneous presumption that  the appellant and respondent no.2 had refused to receive the  notice. The postman’s evidence was not to the effect of any  refusal.  In fact, the evidence clearly established that at no  point of time postman met the appellant. The High Court  relied on decision which related to refusal and those decisions  were not clearly applicable to the facts of the present case.

       The learned counsel for the appellant further submitted  that the decision in Hiralal’s case (supra) has no application to  a case where there is no definite material of refusal.  The  decision in the said case was on the basis of the office report  indicating that the noticee was avoiding to receive the notice.   In that context this Court held that the notice has to be  treated as sufficient.  Further the decision relied upon by the  High Court i.e.  Hiralal’s case (supra) and Gujarat Electricity  Board v. Atma Ram (AIR 1989 SC 1433) have no application to  the facts of the present case.  It was held by this Court that  there is presumption of service of letters sent by registered  cover if the same is returned by postal endorsement that the  addressee refused to accept the same, the presumption is  rebuttable and it is open to the party concerned to place  evidence before the Court to rebut the presumption by saying  that the address mentioned on the cover was incorrect or that  the postal authorities never tendered registered letter to him or  that there was no occasion for him to refuse the same.  The  onus lies on the party challenging the factum of service.            

       In response, learned counsel for the respondent no.1  submitted that the First Appellate Court and the High Court  found that the process server’s reports clearly indicated the  service of the notice and about the knowledge of the appellant  and respondent no.2 about the pendency of the appeal.  It  was, therefore, submitted that the High Court’s judgment does  not warrant interference.

        In the instant case, the postal endorsement is not to the  effect that the addressee has refused to accept the letter  tendered. Similarly, in M/s Madan and Company v. Wazir  Jaivir Chandra (AIR 1989 SC 630) the effect of endorsements  such as "not found", "not in station" or "addressee has left"  was considered. The service of notice of appeal is required to

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be done under Order XLI Rule 14 CPC. The same reads as  follows:

""Publication and service of notice of day  for hearing appeal- (1) Notice of the day faxed  under rule 12 shall be affixed in the Appellate  Court house and a like notice shall be sent by  the Appellate Court to the Court from whose  decree the appeal is preferred, and shall be  served on the respondent or on his pleader in  the Appellate Court in the manner provided for  the service on a defendant of a summons to  appear and answer; and all the provisions  applicable to such summons, and to  proceedings with reference to the service  thereof, shall apply to the service of such  notice.  

(2) Appellate Court may itself cause notice to  be served- Instead of sending the notice to the  Court from whose decree the appeal is  preferred, the Appellate  Court may itself cause  the notice to be served on the respondent or  his pleader under the provisions above referred  to.

(3) The notice to be served on the respondent  shall be accompanied by a copy of the  memorandum of appeal.

(4)     Notwithstanding anything to the contrary  contained in sub-rule (1), it shall not be  necessary to serve notice of any proceeding  incidental to an appeal on any respondent  other than a person impleaded for the first  time in the Appellate Court, unless he has  appeared and filed an address for the service  in the Court of first instance or has appeared  in the appeal.

(5)     Nothing in sub-rule (4) shall bar the  respondent referred to in the appeal from  defending it."  

       Order V Rule 9 of CPC refers to service of summons. The  said provision reads as follows: "9. Delivery of summons by Court. \026 (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

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delivering or transmitting a copy thereof by  registered post acknowledgement 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 acknowledgement 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 authorized  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 acknowledgement due, the  declaration referred to in this sub-rule shall be  made notwithstanding the fact that the  acknowledgment having been lost or mislead,  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)."                           A bare perusal of Order V Rule 9 clearly shows that  service through process of Court is mandatory. This position is  clear from the use of the word "may" in the provision.  In the  instant case not one but several process servers have given  notice relating to service and their endorsements were  sufficient to show service of the notice relating to the appeal.   Though it was contended by learned counsel for the appellant  that the reports were not correct, the same is not acceptable.  

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No material was placed before the Trial Court or the High  Court to show that the endorsements made by the process  servers were false or erroneous.   

       Above being the position, the conclusions arrived at by  the First Appellate Court as affirmed by the High Court do not  suffer from any infirmity to warrant interference.

       The appeal fails and is thus dismissed.  There will be no  order as to costs.