Arun Bhansali JUDGMENT
Arun Bhansali, J.
1. This appeal under Order XLIII, Rule 1(d) CPC has been filed by the appellants aggrieved against order dated 09.03.2016 passed by Additional District Judge, Merta, whereby, the application filed by the appellants under Order IX, Rule 13 CPC seeking setting aside of ex parte decree dated 25.01.2007 has been dismissed.
2. The respondent Company filed a suit for money against the appellants for a sum of Rs. 9,51,877/-. In the suit the summons were sent through registered post acknowledgment due to the appellants and on receipt of acknowledgment, the service was treated as complete and as no one appeared on behalf of the appellants, ex parte proceedings were initiated. Evidence of two witnesses was recorded by the trial court and whereafter the suit was decreed vide judgment and decree dated 25.01.2007 directing payment of a sum of Rs. 4,50,202/- alongwith interest @ 6% per annum from the date of filing of the suit.
3. The appellants, after the decree was transferred to the Court at Bhavnagar, Gujarat and was sought to be executed against the appellants, filed an application under Order IX, Rule 13 CPC on 14.09.2007 before the trial court. It was, inter alia, claimed that the summons sent through registered post acknowledgment due were not served on the appellants and, in absence of service of summons, the suit could not have proceeded and be decreed ex parte.
4. A reply was filed by the respondent Company opposing the prayer made by the appellants. It was submitted that the application was baseless and barred by limitation. The summons were duly served by registered post. The acknowledgment bears signatures of H.V. Shah, Director of appellant No. 1 and himself appellant No. 2 and, therefore, once the summons were duly served and appellants chose not to appear, the suit was rightly proceeded with and decreed ex parte. Even before filing of the suit notices were sent by registered post, which were also received by H.V. Shah with similar signatures.
5. After hearing the parties, the trial court came to the conclusion that the judgments cited by the appellants were not applicable to the facts of the case. The plaintiff was ordered by the Court to sent the notices by registered post acknowledgment due, the A.D. bears the same address, which is indicated in the application seeking setting aside of ex parte decree, the acknowledgment bears the cause title, number, date of hearing of the Court and the appellants have not challenged the address on the acknowledgment, the acknowledgment bears signatures of H.V. Shah, though the signatures have been disputed, however, the initials made on the documents before the Court are similar to the signatures on the acknowledgment. No affidavit has been filed in support of the challenge, the plaintiff has filed affidavit of P.K. Sharma in support of its reply, which has not been contradicted and relying on the proviso to Order IX, Rule 13 CPC, which provides that if the Court is satisfied that the defendant had notice of date of hearing and had sufficient time to appear and answer the plaintiff's claim, the Court shall not set aside the decree passed ex parte merely on the ground that there has been an irregularity in the service of summons and, consequently, dismissed the application filed by the appellants.
6. It is submitted by learned counsel for the appellants that the trial court committed error in not complying with the provisions of Order V, Rule 19 CPC, inasmuch as, the summons were not sent through ordinary court process and they were only sent through registered post acknowledgment due. It was further submitted that the A.D. receipts do not bear the signatures of the appellant No. 1's Director and appellant No. 2 - H.V. Shah, however, the application filed by the appellants under Section 151 CPC for permission to lead evidence was also wrongly rejected by the trial court by its order dated 10.09.2015 and, therefore, the order impugned deserves to be set aside.
7. Reliance was placed on the judgment in Kundan Singh v. District Judge, Alwar & Ors.: MANU/RH/0544/1997 : 1997 (2) RLW 1323 and Amit Pabuwal v. Shri Anand Swaroop Gaur th. LR's & Ors.: MANU/RH/2016/2015 : 2016 (1) CJ (Civ.) (Raj.) 588.
8. Vehemently opposing the submissions made by learned counsel for the appellants, learned counsel for the respondent submitted that the notices were rightly ordered to be sent by the trial court by registered post acknowledgment due as the appellants were situated/residing in other State and the notices were duly served, which fact is fortified from the A.D. receipts, which were duly received by the Court and once the appellants were duly served with the summons and chose not to appear, they cannot seek setting aside of ex parte decree. It was submitted that the limitation for seeking setting aside of ex parte decree is thirty days from the date of decree, however, the application was much delayed and no application seeking condonation of delay was filed and application, therefore, deserved to be dismissed on this count alone.
9. It was further submitted with reference to Section 27 of the General Clauses Act, 1897 ('the Act of 1897') that wherever notices have been sent by registered post, the service shall be deemed to be effected if the document is properly addressed, prepaid and sent by registered post unless the contrary is proved. It was submitted that the burden was on the appellants to show that the notices sent by registered post were not duly served on them, however, they have failed to discharge the burden. In the alternative, submissions were made that the fact that notices were not sent through ordinary course process and were only sent through registered post A.D., could not arm the appellants to seek setting aside of ex parte decree in view of second proviso to Order IX, Rule 13 CPC, which prohibits the Court to exercise jurisdiction in case there is some irregularity if the defendant otherwise had the knowledge of the date of hearing of the suit. It was also submitted that after filing the application in the year 2007, the application seeking permission to lead evidence was filed in the year 2015 and was rightly rejected by the trial court, which does not call for any interference.
10. Reliance was placed on Harihar Banerji & Ors. v. Ramshashi Roy & Ors.: MANU/PR/0030/1918 : AIR 1918 Privy Council 102, M/s. Green View Radio Service v. Laxmibai Ramji & Anr.: MANU/SC/0378/1990 : AIR 1990 SC 2156, Jindal Dyechem Industries Pvt. Ltd. v. Pahwa International Pvt. Ltd.: MANU/DE/2280/2009 : (2010) 1 ILR Delhi 245 and Basant Singh & Anr. v. Roman Catholic Mission: MANU/SC/0855/2002 : 2002 DNJ (SC) 728.
11. I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
12. Provisions of Order V, Rule 9 CPC in so far as the same are relevant, read as under:--
"9. Delivery of summons by Court.-
(1) ....
(2) ....
(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) .... "
13. The above provisions, which were inserted vide amendment in the year 1999 and were again substituted in the year 2002, specifically provides that service of summons may be made by delivering a copy by registered post acknowledgment due addressed to the defendant provided that service of summons under the said sub-rule shall be made at the expenses of the plaintiff. Sub-rule (4) further provides that where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that service of summons on that defendant may be made by such mode of service of as is referred to in sub-rule (3), the provisions of Rule 21 shall not apply and sub-rule (5) clearly envisages that when an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court, the Court issuing summons shall declare that the summons had been duly served on the defendant. The proviso to sub-rule (5) provides that service would be deemed sufficient where the summons were properly addressed, prepaid and duly sent by registered post acknowledgment due, notwithstanding the fact that the acknowledgment having been lost or mislaid or has not been received by the Court within thirty days from the date of issue of summons.
14. In view of the express provisions of Sub-rules (3) to (5) of Order V, Rule 9 CPC, the trial court was justified in ordering for sending of summons by registered post acknowledgment due and it cannot be said that any illegality/irregularity was committed by the trial court in ordering for sending of summons by registered post acknowledgment due.
15. Further a bare look at the A.D. receipts, which were received by the trial court, reveals that the registered post summons were sent through the court only and the acknowledgment receipts were also received at the Court and as noticed by the trial court in the order impugned, also bears the cause title, number of the case and the next date fixed in the matter. Both the acknowledgments bear signatures of the receiver of the registered article, in view thereof, the trial court was justified in coming to the conclusion that the summons of the suit were duly served on the defendants and thereafter ordered for proceeding ex parte and after recording ex parte evidence, partly decreed the suit.
16. Once the appellants filed application under Order IX, Rule 13 CPC on the ground that summons were not duly served on them and/or disputing the signatures on the A.D. receipts, the entire burden lay on the appellants to prove the said stand taken by it regarding the service. No attempt was made by the appellants for over eight years after filing the application under Order IX of Rule 13 CPC in the year 2007 till the year 2015 to lead evidence/produce evidence seeking to question the authenticity of the signatures on the A.D. receipt and/or that the summons were not served through the registered post acknowledgment due. However, in the year 2015 i.e. after passage of eight years an application under Section 151 CPC in most vague terms was filed seeking opportunity to lead evidence, which was rightly rejected by the trial court on account of the unexplained delay in moving the said application.
17. The provisions of Section 27 of the Act of 1897 read as under:--
"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, 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."
18. A bare look at the said provision fortifies the submissions made by learned counsel for the respondent that unless the contrary was proved by the appellants in the present case, the very fact that the notices were sent properly addressed, prepaid and by registered post, the service on the appellants would be deemed to be proper service. It is not the case of the appellants that the notices were sent on wrong address and on that count also, the submissions made in the present appeal cannot be countenanced.
19. So far as the judgment in the case of Kundan Singh (supra) is concerned, in the said case the notices were sent through registered post were returned with the endorsement refused and when objection was made regarding the said endorsement and prayer was made to summon the Postman, which application was rejected by the trial court, this Court directed that evidence of Postman be recorded. The facts of the said case are totally different from the present case, inasmuch as, it is not a case of refusal of summons, wherein, the evidence of Postman is required to be recorded, as the summons were duly served.
20. The judgment in the case of Amit Pabuwal (supra) also has no application to the facts of the present case as in the said case it was not decipherable from the signatures on the A.D. as to whether the person was manager or agent or was authorized to receive the summons on behalf of the defendant.
21. In the present case, Mr. H.V. Shah is admittedly the Director and one of the defendants in the suit and the summons were received by him and, therefore, the said judgment also has no application to the facts of the present case.
22. A feeble attempt was made by learned counsel for the appellants to submit that the trial court was not justified in comparing the signatures on the A.D. receipts and the other signatures of the appellants available on record. However, the said submission has also been noticed to be rejected in view of the provisions of Section 73 of the Evidence Act, 1872 which empowers the Court to make such a comparison.
23. In view of the above discussion, there is no substance in the appeal filed by the appellants and the same is, therefore, dismissed. No order as to costs.
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