Whether court should proceed exparte even if there is no proper service of summons?

 In the present case, the notice was sent initially by RPAD and the envelope has returned with endorsement D/L 23-08-16 and 24-08-16. An intimation was given on 25-08-2016 and as the addressee did not visit the post office for collecting the registered post envelope, it was returned as unserved. The envelope nowhere shows that it was refused by the noticee i.e Appellant herein. Thereafter, summons was reissued through bailiff. That time the opponent was not there. The papers disclose that the notice was issued for the first time on 13-06-2016 and the first notice issued returned unserved as the bailiff did not get sufficient time for service.

8. This is a custody matter of a child before the Additional District Judge-5, Aurangabad, who was expected to be sensitive to the rights of the parties and was bound to verify the record before passing ex-parte order. In the first place, there was no attempt to serve the notice dated 14-08-2016 for want of time, still the Advocate for appellant filed false application dated 20-08-2016 (Exhibit-7) that the opponent No. 1 was avoiding to accept the notice. There was no material to accept the statement, still the Court proceeded with the application. Pertinently, the claim was filed at Jalgaon and the present appellant was residing with her father at Bhadgaon, District Jalgaon. As per Order V of the CPC, there is no provision of effecting service by mere RPAD. Still, the application was casually allowed. When there was no service by RPAD, still the ex-parte order was passed. The RPAD envelope does not bear the endorsement as not claimed, still the order shows that there was an endorsement as not claimed. Even if, it is assumed to be true, still such endorsement does not mean that it is endorsement of refusal to accept the service. Even if, there would have been refusal to accept the service as per Order V, Rule 17 of the CPC, service by pasting/affixing the copy of notice + plaint on the outer door or some other conspicuous part of the house was essential alongwith the report to that effect of the bailiff. No such efforts were made. Only one attempt was made through bailiff when the opponent was not found in house. This type of casual approach by a District Judge in the sensitive matter of child custody for proceeding exparte without application of mind was not expected. As there was no service of notice, the impugned ex-parte Order and Judgment is not tenable and deserves to be set-aside.

In the High Court of Bombay

(Before A.M Dhavale, J.)

 Jayshri Gajendra Mahajan,v. Gajendra Pandit Mahajan, 

First Appeal No. 2815 of 2017

With

CA/9798/2017 in FA/2815/2017

Decided on August 7, 2018

Citation: 2018 SCC OnLine Bom 2233

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Whether addressee not collecting envelope on intimation amounts refusal to accept notice?

The admitted and proved facts in the petition before me clearly show that within one month, the tenant on March 11, 1975 remitted the entire arrears of Rs. 2,421.14 by a Demand Draft. A look at the envelope shows the necessary postal endorsements that the landlord not having been found at the delivery time. The facts clearly show that the landlord, plaintiff No. 1 has admitted that the envelope bears his correct address. It is common that the postal authorities in the matter of address not being found at delivery time consecutively send intimation and then keep the registered envelope for a period of a week to enable the addressee to collect the envelope personally by attending the post office. The envelope (Exh. 35) in the instant petition bears all the necessary endorsements and the learned counsel appearing for the petitioners has not raised any dispute in regard thereto. In law, failure on the part of the addressee in collecting the envelope on intimation inspite of the fact that the postal authorities retained the envelope for a period of one week, as has been placed on evidence in this matter, cannot but would amount to a refusal on the part of the landlord. 
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1142 of 1981

Decided On: 01.04.1991

Ramchandra Govind Palekar and Ors.Vs.  Ramesh Nana Jangam and Ors.

Hon'ble Judges/Coram:
V.V. Kamat, J.
Citation: 1992 Bom. C. R. 310.

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Whether case for dishonour of cheque is maintainable if notice is returned with remark 'Not claimed'?

 Since in Bhaskaran's case (supra), the notice issued in terms of Clause (b) had been returned 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?' It was observed that though Section 138 of the Act does not require that the notice should be given only by 'post', yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short 'G.C. Act') could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sender unless he proves that it was not really served and that he was not responsible for such non-service.

Equivalent Citation: 2013(3)ABR860, 2014ALLMR(Cri)1836, 2013(2)BomCR(Cri)502, 2013CriLJ2415, 2013(2)Crimes576(Bom.), 2013(6)MhLj147

IN THE HIGH COURT OF BOMBAY

Criminal Revision Application No. 435 of 2011

Decided On: 03.04.2013

 Rekha Mahindra Shah Vs. Gautam Umed Parmar and The State of Maharashtra

Hon'ble Judges/Coram:S.C. Dharmadhikari, J.

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