Saturday, 25 March 2017

Whether proper service of summons can be presumed even if summons were sent at wrong address?

It is abundantly clear from the reading of this rule that the summonses must be sent for service but in cast they are not served and they are returned, then alone the provisions of this rule are attracted. This Rule 20-A cannot be construed to mean that even if the summonses are sent in a wrong manner, or at a wrong address or to a wrong place and they are received back, service by registered post is permissible. This rule contemplates an attempt and a genuine attempt of the service of summons in the ordinary course. If service is not possible and the summonses are returned then of course mode of service of summons by registered post can be resorted to either in lieu of or in addition to the service under the ordinary course. The proviso added by Rajasthan State in Order 5, Rule 10, C.P.C. gives discretion to the court to send the summons to the defendant by registered post in addition to the mode of service laid down under Order 5, Rule 10. C. P. C. As noticed above on 19-10-70 summonses were ordered to be sent in ordinary course and service by registered post was also directed to be done in addition to it. But it transpired that the notices which were, sent in ordinary course were not properly done. The plaintiff furnished notices only in Hindi and they could not have been served on any person in the State of Andhra Pradesh. Thus there is a clear violation of Order 5, Rule 10, C.P.C.
Rajasthan High Court
Sitaram Ramavtar vs Lohiya Murlidhar Meghraj on 28 January, 1975
Equivalent citations: AIR 1975 Raj 121, 1975 WLN 201

Bench: J Jain
1. This is a miscellaneous appeal under Order 43, Rule 1 (d), Code of Civil Procedure and is directed against the order dated 14-9-74 of the Additional District Judge No. 2, Jodhpur, by which he refused to set aside the ex parte decree passed against the appellant.
2. Briefly stated the facts of the case are that the respondent firm, M/s. Lohiya Murlidhar Meghraj sued M/s. Sitaram Ramavtar for recovery of Rs.
17,000 for some alleged breach of contract. The appellant firm M/s. Sitaram Ramavtar is a partnership firm and has been working as commission agents in Hyderabad (Andhra Pradesh). The respondent's suit had been registered on 14-10-70 by the District Judge, Jodhpur but it was transferred for trial to the Court of Additional District Judge No. 2, Jodhpur. On 19-10-70 summonses were ordered to be issued for service in ordinary course on the defendant firm. In addition to that process, summonses were also ordered to be sent by registered post. The notices which were sent in the ordinary course being in Hindi were sent back by the court of District Judge, Hyderabad with the remarks that the notices be sent in English for service. The notice that was sent under registered cover came back with the remark 'refused'. This endorsement was purported to have been made on 30-11-70. The date fixed in the case was 26-11-70. The learned trial Judge did not think service by registered notice as sufficient On 11-12-70 without issuing any further summons in ordinary course, he ordered that notice be sent under registered cover and the case was fixed on 14-1-71. On that date the notice sent by registered cover was received back with the remark 'refused'. The learned trial Judge deemed this to be sufficient service and proceeded with the suit ex parte against the defendant firm. After recording the evidence ex parte, he decreed the plaintiff's suit on 23-10-72.
3. The plaintiff-firm took out the execution. It also got the execution transferred to a court in Hyderabad. According to the defendant-firm it came to know of the decree having been passed against it in Jodhpur on 6-2-73. It filed an application under Order 9, Rule 13, C. P. C. on 26-2-73. It was alleged in the application that there was no proper notice to the defendant-firm and the summonses were never tendered or delivered to any of the partners of the firm or anyone otherwise competent to receive summons on its behalf. It was also contended that the endorsement of refusal on the registered letter was incorrect. This application was opposed by the plaintiff-firm. The learned trial Judge enquired into the matter and examined Sitaram on behalf of the defendant and Shankerlal, Kesrimal, and Ramchandra on behalf of the plaintiff. By his order dated 14-9-74 the learned trial Judge dismissed the application of the defendant-firm. It is this order that has been challenged by the defendant-firm.
4. Mr. Mathur, learned counsel, appearing on behalf of the defendant-firm has strenuously urged that the trial Judge was in error in holding service by registered post sufficient in the circumstances of the case. His submission is that under Order 5, Rule 10, C. P. C. service of summons must have been made by delivering or tendering a copy thereof to the defendant-firm. The proviso added in Rajasthan, only empowers the court to send the summons by registered post in addition to the mode of service laid down in this rule. It has been pointed out that in the first instance summonses were sent for service in the ordinary course to the court in Hyderabad but no attempt was made on the basis of those summonses inasmuch as they were returned by the Hyderabad Court with the remark that the summonses should have been sent in English. According to Mr. Mathur no attempt was made by the trial Judge to serve the summons as contemplated by Order 5, Rule 10, C.P.C. and as such there was no occasion for that court to have sent the summons by registered post. Mr. Mehta, on the other hand, placed reliance on Order 5. Rule 20-A. He argued that when the summonses sent for service in ordinary course were returned unserved, the court could either in lieu of or in addition to direct to send the summons by registered post addressed to the defendant and since this mode was adopted the endorsement of refusal by the postal employee should be deemed to be sufficient proof of service.
5. I have considered the rival contentions. On the facts of the case I am unable to hold that proper summonses were sent for service on the defendant-firm in the manner prescribed by Order 5, Rule 10, C.P.C. The fact that the summonses were sent back from Hyderabad Court as they were not in English language it cannot be deemed that an attempt was made to serve the defendant in the ordinary course. It is well borne out from the record that after the summonses were received back from the Hyderabad Court fresh summonses in English were not sent to that Court for service. In this view of the matter I cannot accept the contention of Mr. Mehta that the provision contained in Order 5, Rule 20-A is applicable. Order 5, Rule 20-A reads as under :
"Rule 20-A- Where, for any reason whatsoever, the summons is returned unserved, the court may, either in lieu of, or in addition to, the manner provided for service of summons in the foregoing rules, direct the summons to be served by registered post addressed to the defendant or his agent empowered to accept service at the place where the defendant or his agent ordinarily resides or carries on business or personally works for gain.
An acknowledgment purporting to be signed by the defendant or the agent or an endorsement by a postal employee that the defendant or the agent refused to take delivery may be deemed by the Court issuing the summonu to be prima facie proof of service,"
6. It is abundantly clear from the reading of this rule that the summonses must be sent for service but in cast they are not served and they are returned, then alone the provisions of this rule are attracted. This Rule 20-A cannot be construed to mean that even if the summonses are sent in a wrong manner, or at a wrong address or to a wrong place and they are received back, service by registered post is permissible. This rule contemplates an attempt and a genuine attempt of the service of summons in the ordinary course. If service is not possible and the summonses are returned then of course mode of service of summons by registered post can be resorted to either in lieu of or in addition to the service under the ordinary course. The proviso added by Rajasthan State in Order 5, Rule 10, C.P.C. gives discretion to the court to send the summons to the defendant by registered post in addition to the mode of service laid down under Order 5, Rule 10. C. P. C. As noticed above on 19-10-70 summonses were ordered to be sent in ordinary course and service by registered post was also directed to be done in addition to it. But it transpired that the notices which were, sent in ordinary course were not properly done. The plaintiff furnished notices only in Hindi and they could not have been served on any person in the State of Andhra Pradesh. Thus there is a clear violation of Order 5, Rule 10, C.P.C.
7. Another contention raised by Mr. Mathur is that there has been a disregard of Order 30, Rule 3, C.P.C. in the matter of service. Order 30, Rule 3, C.P.C. reads as follows:
"Rule 3 - Where persons are sued as partners in the name of their firm, the summons shall be served either
(a) upon any one or more of the partners, or
(b) at the principal place at which the partnership business is carried on within (India) upon any person having, at the time of service, the control or management of the partnership business there, as the Court may direct, and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without (India):
Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within (India) whom it is sought to make liable."
8. It has been urged that the defendant firm is a partnership firm and there are two partners in that firm, namely, Sitaram and Jagannath. The requirement of this Rule 3 of this order is that if persons are sued as partners in the name of the firm, the summons shall be served either on any one or more of the partners or at the principal place of partnership business upon any person having at the time of service the control or management of the partnership business as directed by the Court. The plaintiff is supposed to seek the direction of the court to effect service when he sues in the name of the firm. In the present case the directions under Order 30, Rule 3, C.P.C. were not obtained by the plaintiff. One copy of the summons was sent contained in a registered letter addressed to the firm for service. The- letter was not addressed either to Sitaram or to Jagannath and there has been no positive service on any of them. The refusal cannot be understood to have been made by Sitaram or Jagannath or by anyone else. If the directions had been sought and the registered letter had been addressed either to Sitaram or Jagannath or to both the matter would have been clear as to whom the endorsement of refusal was intended to relate.
9. That apart, I find from exhibits Nos. 3, 5 and 6 that firm Sitaram Ramavtar is situate at Maharaj Ganj Hyderabad-12. The letters which were sent by registered post and addressed to firm's name did not mention Maharaj Ganj, the place of business. It cannot, therefore, be said that registered letters were properly addressed. Mr. Mehta has argued that a registered notice of which the acknowledgment is Ex. 34 was similarly addressed and it reached the defendant's firm admittedly. I am unable to accept this argument. A letter which is not properly addressed may or may not reach but presumption cannot be raised with respect to letters which are not properly addressed that they must have reached the place of destination.
10. With a view to prove effective service by post on the defendant firm the letter should be addressed not only properly but to some particular person alleged to be a partner or one, having at the time of service, control or management of the partnership business, and it should be served by registered post upon such a person. It is not enough to send a registered letter addressed to the firm name. If that is so done it would be in contravention to Rule 3 of Order 30 C. P. C. particularly in cases, where there is no positive service on a person entitled to be served under the Rule.
11. Rankin J. in Harjibandas Gordhandas v. Bhagwandas Pursram, AIR 1922 Cal 390 stated the law in this manner:
"Under Order XXX, Rule 3, the only way in which such writ can be served is by serving it either upon a partner or by serving it at the principal place at which the partnership business is carried on in British India on a person having at the time of service the control or management of the partnership business. If Rule 11 of Chapter VIII of the High Court Rules is applied, and the notice sent by registered post it is necessary that it should be so applied as to comply with Order XXX, Rule 3, that is to say, the registered letter should be addressed to some particular person alleged to be a partner or to have control over the partnership business."
12. In Tripura Bank Ltd. v. Bansen and Co., AIR 1952 Cal 781 it was observed :
"There are two alternative modes of service prescribed by the Rule, namely upon a partner or upon a manager in control of the business. But service cannot be effected without the direction of the Court. A deliberate omission to obtain such direction cannot be regarded as an irregularity within the Section 99 of the Code. If the service is effected upon the manager in control of the business, the service must be at the principal place at which the partnership business is carried on. If a partner is sought to be served not as a partner but as a manager, then he cannot be served at the residence of the partner."
13. In Shrinath Bros. v. Century Spg. and Wvg. Mills Co. Ltd., AIR 1968 Bom. 443 Nain J. while dealing with the question of service observed as follows:
"Personal service of the processes of a Court by the officers of the same or another Court is and has always been the normal mode of service. Order 5, Rule 21-A of the Code of Civil Procedure gives a facility in this modern age of permitting parties to serve processes of a Court by registered post to save them from the trouble and expense of effecting personal service at places outside or even within the jurisdiction of the Court, but this facility does not take away or affect the provisions of Order 30, Rules 3 and 5 which must, in any event, be complied with. If a process is addressed to a partner by registered post he must also be informed in what capacity it is addressed to him. Similarly, if the process is addressed to a person in his capacity as manager of the business in charge of it at the time of service, he must be so informed even if the service is by registered post."
14. In Ghulam Muhammad v. Mehr Din, AIR 1930 Lab. 560, Jai Lal. J. held where substituted service is ordered by the Court (a) by registered post, (b) by tender of dasti summons by the plaintiff and (c) proclamation in the defendant's village and the plaintiffs take no steps to have service effected as in (a) and (b) but proclamation alone alleging that he had no notice of the case should be set aside.
15. In the present case the plaintiff did not make an actual attempt to effect service on the defendant firm in the ordinary course. The service by registered post could have been resorted to only in addition to the mode of service contemplated by Rule 10 of Order 5, C.P.C. The service could not have been effected by mere registered post. That apart, directions were not sought by the plaintiff as to how and on whom the plaintiff firm wanted to effect service within the meaning of Order 30, Rule 3, C.P.C. In this view of the matter I have no hesitation to hold that the service on the defendant firm in the present case was not sufficient. The ex parte decree cannot be sustained.
16. In the result the appeal is allowed. The order dated 14-9-74 passed by the Additional District Judge No. 2, Jodhpur is set aside. The ex parte decree dated 26-11-1973 is also set aside. In the circumstances of the case, I pass no order as to costs. The parties will appear before the trial Judge on 17-2-1975.
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