Bombay High Court

Udhav Baliram Adawale vs Babruwan Papanarsh Gaikwad on 25 July, 2017

Bench: R.V. Ghuge

                                       1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                       WRIT PETITION NO. 293 OF 2016

                        UDHAV BALIRAM ADAWALE
                               VERSUS
                     BABRUWAN PAPANARSH GAIKWAD

                Advocate for Petitioner : Shri A.H. Kasliwal.
                Advocate for Respondent : Shri A.N. Sabnis
                           h/f Shri V.D. Gunale.



                                      CORAM : RAVINDRA V. GHUGE, J.

                                      Dated    : 25th  July, 2017

 PER COURT :

1. The petitioner is aggrieved by the order dated 28th

October, 2015, by which, the Court below has concluded in

application No. 01/2015, that the applicant original defendant

was not properly served with the Court notice and as such the

judgment in R.C.S. No. 25/2013, delivered on 27th June, 2014,

is recalled.

2. I have considered the strenuous submissions of the

litigating sides and with their assistance have gone through the

petition paper book and the record available.

3. There is no dispute that the judgment dated 27/06/2014,

in Special Civil Suit No. 25/2013, was an ex-parte judgment

since the Court has observed that the summons issued by

9 was returned with the remark "Unclaimed intimation posted."

Based on the same the Trial Court held that the defendant is

properly served and does not desire to participate in the

proceedings. Consequentially, by the said judgment an amount

of Rs. 6,74,760/- was directed to be paid by the defendant to

the plaintiff within one month.

4. The original defendant, therefore, moved a miscellaneous

application before the Court below and prayed for vacating of

ex-parte judgment under Order IX Rule 13 read with Section

151 of the Code of Civil Procedure.

5. Shri Kasliwal, learned advocate has strenuously

contended that, once the postal remark indicates as "intimation

given, unclaimed, not-claimed", this necessarily amounts to

proper service on the addressee, since it indicates that the

addressee was informed by the Postal Department and he had

declined to accept the envelope and has not claimed it. He

relies upon the judgment of the Hon'ble Apex Court in the

matter of K. Bhaskaran Versus Sankaran Vaidhyan Balan and

another [AIR 1999 Supreme Court 3762 (1)]. He also relies

upon the judgment of this Court in the matter of Krishna

Ramchandra Jadhav @ Yadav and others Versus Smt. Shankari

B. Ajimal [2005 (4) Mh.L.J. 577].

and David K. N. Versus S.R.

Chaubey (Chaturvedi) [2003 (4) BCR 612].

6. Learned advocate for the respondent relies upon the

judgment of this Court dated 14/10/2011, in the matter of The

New India Assurance Co. Ltd. Versus Smt. Nasibunnisa Mohd.

Israr Khan and others [Civil Application No. 1979/2011, in First

Appeal (Stamp) No. 13185/2011].

7. The issue before this Court is as regards the service of

Court notice and the observation made by the Trial Court in the

judgment sought to be recalled that the remark 'unclaimed'

would amount to proper service.

8. The original defendant led evidence before the Trial Court

in support of the miscellaneous application and stated that

though his address is correctly shown on the envelope, by which

the Court notice was sought to be served on him, the same was

not served since he was not available. In the cross-examination,

he has maintained the said contention.

9. The submission of the petitioner is that in the matters of

Krishna Ramchandra Jadhav @ Yadav (Supra), pertaining to

notice served by the landlord on the tenant and in the matter of

David K. N. (Supra), where the statutory notice was to be served

under the Bombay Rents, Hotel and Lodging House Rent

Control Act, 1947, it has been concluded that such statutory

notice is presumed to be served under Section 27 of the General

Clause Act, since the best that a landlord can do is to send the

notice on the correct address and thereafter, it is not within his

control to ensure accurate service on the addressee. Even in

the case of K. Bhaskaran (Supra), the issue of statutory notice

under Section 138 of the Negotiable Instruments Act was

considered and the Hon'ble Apex Court concluded that when a

notice is returned by the sendee (addressee) as unclaimed, such

date would be the commencement date in reckoning the period

of 15 days, contemplated in clause 'D' to the proviso to Section

138. Such presumption/reckoning would be without prejudice

to the rights of the addressee/sendee to show that he had no

knowledge that the notice was brought to his address and was

not served upon him.

10. However, in the judgment delivered by this Court (Coram :

Abhay S. Oka, J.) in The New India Assurance Co. Ltd. case

(Supra), the issue is practically identical to the issue involved in

this case, where notice issued by the Court was alleged to be

served upon the defendant. This Court while considering the

said position, has considered the law laid down by the Hon'ble

Apex Court in M/s. Madan and Company Versus Wazir Jaivir

Chand (AIR 1989 Supreme Court 630), and dealt with the

issue of service of Court notice, either through the bailiff or

through the postal department. In order to ensure that the

service is proper and complete, in so far as Court proceedings

are concerned, this Court concluded that it would be unsafe to

hold that the remark "intimation posted or unclaimed" would

significantly indicate that the notice of the Court was actually

served upon the defendants/respondents. It is further

concluded that in such a situation, there is no scope to invoke

the rebuttable presumption that the notice was never served

and hence the Court must ensure that the notice is properly

served.

11. I find it apposite to reproduce the observations of this

Court in paragraph Nos. 10 to 16 here under :

"10. It will be necessary at this stage to make a reference

to the decision of the Apex Court in the case of M/s.

Madan and Company Vs. Wazir Jaivir Chand (AIR 1989

Supreme Court 630). It will be necessary to make a

reference to what is held by the Apex Court in paragraph

No. 6 of the decision, which reads thus :

"6. We are of opinion that the conclusion

arrived at by the Courts below is correct and should

be upheld. It is true that the proviso to Cl. (i) of S.

11 (1) and the proviso to S 12 (3) are intended for

the protection of the tenant. Nevertheless it will be

easy to see that too strict and literal a compliance of

their language would be impractical and

unworkable. The proviso insists that before any

amount of rent can be said to be in arrears, a notice

has to be served through posts. All that a landlord

can do to comply with this provision is to post a

prepaid registered letter (acknowledgment due or

otherwise) containing the tenant's correct address.

Once he does this and the letter is delivered to the

post office, he has no control over it. It is then

presumed to have been delivered to the addressee

under S.27 of the General Clauses Act. Under the

rules of the post office, the letter is to be delivered

to the addressee or a person authorised by him.

Such a person may either accept the letter or

decline to accept it. In either case, there is no

difficulty, for the acceptance or refusal can be

treated as a service on, and receipt by, the

addressee. The difficulty is where the postman calls

at the address mentioned and is unable to contact

the addressee or a person authorised to receive the

letter. All that he can then do is to return it to the

sender. The Indian Post Office Rules do not

prescribe any detailed procedure regarding the

delivery of such registered letters. When the

postman is unable to deliver it on his first visit, the

general practice is for the postman to attempt to

deliver it on the next one or two days also before

returning it to the sender. However, he has neither

the power nor the time to make enquiries regarding

the whereabouts of the addressee; he is not

expected to detain the letter until the addressee

chooses to return and accept it; and he is not

authorised to affix the letter on the premises

because of the assessee's absence. His

responsibilities cannot, therefore, be equated to

those of a process server entrusted with the

responsibilities of serving the summons of a Court

under O. V of the C.P.C. The statutory provision has

to be interpreted in the context of this difficulty and

in the light of the very limited role that the post

office can play in such a task. If we interpret the

provision as requiring that the letter must have

been actually delivered to the addressee, we would

be virtually rendering it a dead letter. The letter

cannot be served where, as in this case, the tenant

is away from the premises for some considerable

time. Also, an addressee can easily avoid receiving

the letter addressed to him without specifically

refusing to receive it. He can so manipulate matters

that it gets returned to the sender with vague

endorsements such as "not found", "not in station",

"addressee has left" and so on. It is suggested that

a landlord, knowing that the tenant is away from

station for some reasons, could go through the

motions of posting a letter to him which he knows

will not be served. Such a possibility cannot be

excluded. But, as against this, if a registered letter

addressed to a person at his residential address

does not get served in the normal course and is

returned, it can only be attributed to the

addressee's own conduct. If he is staying in the

premises, there is no reason why it should not be

served on him. If he is compelled to be away for

some time, all that he has to do is to leave

necessary instructions with the postal authorities

either to detain the letters addressed to him for

some time until he returns or to forward them to

the address where he has B gone or to deliver them

to some other person authorised by him. In this

situation, we have to chose the more reasonable,

effective, equitable and practical interpretation and

that would be to read the words "served" as "sent by

post", correctly and properly addressed to the

tenant, and the word "receipt" as the tender of the

letter by the postal peon at the address mentioned

in the letter. No other interpretation, we think, will

fit the situation as it is simply not possible for a

landlord to ensure that a registered letter sent by

him gets served on, or is received by, the tenant."

(underline supplied)

11. It will be material to note that in the aforesaid

decision, the Apex Court has observed that the Indian

Post Office Rules do not prescribe any detailed procedure

regarding delivery of the registered letters where the

postman is unable to contact the addressee or a person

who is authorized to receive the letter. The Apex Court

noted the general practice that after making an attempt to

deliver the letter on one or two days, the Postman returns

the letter to the sender. The Apex Court held that the

responsibility of a postman cannot be equated to that of a

process server (Court bailiff) entrusted with the

responsibility of serving the summons of a Court under

Order V of the Code.

12. As far as the procedure for service of summons is

concerned, Rule 16 of Order V of the said Code is relevant

which reads thus :

"16. Person served to sign acknowledgment.-

Where the serving officer delivers or tenders a copy

of the summons to the defendant personally, or to

an agent or other persons on his behalf, he shall

required the signature of the person to whom the

copy is so delivered or tendered to an

acknowledgment of service endorsed on the original

summons."

13. Rule 18 requires the serving officer to submit a

return in the form of endorsement stating therein the

particulars of service. Rule 17 which deals with service

by affixing is already dealt with earlier. If the summons is

served by affixing as per the Rule 17 and if the return is

not verified on affidavit by serving officer, the Court is

under an obligation to examine the serving officer on oath.

If the return is verified on affidavit by the serving officer,

the examination of the serving officer is not mandatory,

but it is at the discretion of the Court. Only after

examination as aforesaid and after making such further

inquiry in the matter as it thinks fit, the Court can either

declare that summons has been duly served or may order

fresh service. The officer entrusted with the responsibility

of service of summons is under an obligation to file a

return contemplated by Rule 18 of Order V which is not

the requirement of the Rules of the Postal department. If

an officer of the Court makes an incorrect or false

statement in the return, the Court can initiate action

against him. That is why the Apex Court has made a

distinction between the responsibilities of a process server

and a postman. As far as precess server is concerned, he

is always an officer of the Court (except in the city of

Bombay where service is effected through the bailiffs

attached to the office of the Sheriff). He is under an

obligation to make a return making endorsement as

required by Rule 18. In case defendant refuses to accept

or declines to accept the summons, he is bound to file a

return verified by an affidavit. If he does not verify the

return on the affidavit, the Rules mandate that the Court

shall examine him on oath.

14. As pointed out earlier, when summons or notice is

issued by Registered Post A.D. By invoking Rule 9 of

Order V, there is no specific provision either in the said

Code or in the Appellate Side Rules which deals with the

contingency where the postal article containing the

summons or notice is returned with remark "intimation

posted" and "unclaimed" or "not claimed". The Sub-Rule

(5) of the Rule 9 of Order V which provides that in certain

cases the Court shall declare that the summons has been

duly served significantly does not cover a case where the

summons or notice issued by Registered Post A.D. is

returned with remark "intimation posted" and

"unclaimed" or "not claimed". Now the question is

whether in such a case the presumption under Section 27

of the General Clauses Act or Section 114 of the Evidence

Act can be invoked. Such presumption is held to be a

rebuttable presumption. Essentially a presumption is a

rule of evidence and the question of invoking presumption

arises only after parties adduce evidence. The

presumption under both the sections is a rebuttable

presumption. The presumption is a rule of evidence

which can be applied only after the parties adduce

evidence inasmuch as only at that stage, there is an

opportunity to rebut the presumption. When it comes to

service of summons or notice as required by the said

Code, at the stage of service of summons or notice, the

Court cannot invoke the presumption either under

Section 27 of the General Clauses Act or under Section

114 of the Evidence Act and hold that the service effected

in such manner is a good service. The decisions which

hold such service as "good service" are rendered in

relation to the service of statutory notice by the landlord

to the tenant or notices exchanged between the parties.

In these cases, such presumption was invoked after the

parties adduced evidence. Therefore, when summons or

notice of the Court issued by Registered Post A.D. is

returned with a remark "intimation posted" and "not

claimed" or "unclaimed", the same cannot be accepted as

a good service. The reason is that at that stage there is

no scope to invoke the rebuttable presumption. As

pointed out earlier, apart from the fact that the

presumption as aforesaid is a rule of evidence, even

assuming that there is a proper service of an intimation,

the postal authorities do not keep the postal articles in

the post office for more than few days and the same are

returned to the sender. In case of the Defendant who is

away for more than few days, even if he visits the post

office for collecting the postal article, he will not get the

postal article if it is already returned. It is pertinent to

note that while substituting the Rule 9 of Order V of the

said Code, though the legislature has expressly provided

that if a postal article containing the summons is received

back with an endorsement of refusal, the same shall be

treated as good service, there is no such provision made

in a case where summons or notice issued by Registered

Post A.D. is returned with a remark "intimation posted"

and "not claimed" or "unclaimed". Therefore, in such a

case, the service of summons or Court notice cannot be

treated as a good service. The settled law of invoking

presumption of service of notice by landlord to the tenant

will not apply to service of summons or notice.

15. There is one more aspect of the matter. Noticing

the large filing of matters in this Court and the shortage

of hands in the office, this Court started practice of

directing the Appellant or the Applicant to serve private

notice in addition to the service through Court. Such

orders are passed essentially to facilitate early service of

notice as it is a matter of common experience that due to

large number of matters in which notices are issued by

this Court, there is a delay in dispatching the notices.

Such private service is not contemplated by either the

said Code or the Appellate Side Rules. Rule 9 A of Order

V will not apply in such a case in as much as the said

Rule contemplates handing over the summons of the

Court to the Plaintiff for effecting service. The said Rule

reads thus :

"9-A. Summons given to the plaintiff for service.-

(1) The Court may, in addition to the service of

summons under rule, on the application of the

plaintiff for the issue of a summons for the

appearance of the defendant, permit such plaintiff

to effect service of such summons on such

defendant and shall, in such a case, deliver the

summons to such plaintiff for service.

(2) The service of such summons shall be

effected by or on behalf of such plaintiff by

delivering or tendering to the defendant personally a

copy thereof signed by the Judge or such officer of

the Court as he may appoint in this behalf and

sealed with the seal of the Court or by such mode of

service as is referred to in sub-rule (3) of Rule 9.

(3) The provisions of Rules 16 and 18 shall apply

to a summons personally served under this rule as

if the person effecting service were a serving officer.

(4) If such summons, when tendered, is refused

or if the person served refuses to sign an

acknowledgment of service or for any reason such

summons cannot be served personally, the Court

shall, on the application of the party, re-issue such

summons cannot to be served by the Court in the

same manner as a summons to a defendant.]"

16. The Sub-Rule (4) of Rule 9A provides that refusal of

service of summons cannot be accepted as good service

and the summons is required to be reissued in such a

case. Under the said Rule 9A, If service is attempted to be

effected by registered post A.D, Sub-Rule 5 of Rule 9 is

not applicable and in case of refusal it is not mandatory

that service should be accepted as a good service. A

provision like Sub-Rule (5) of Rule 9 has not been

incorporated in Rule 9-A. When service is privately

effected on the basis of the order of the Court permitting

private service in addition to service through Court, it is

always a discretion of the Court to accept whether service

of private notice should be treated as a good service or

not. While exercising the discretion, no doubt the Court

will be guided by the provisions of Order V of the said

Code. But it is not mandatory in every case that service

of notice effected privately should be always treated as a

good service. The Court will have to consider various

factors before accepting service effected privately as a

good service."

[Emphasis supplied]

12. Though Shri Kasliwal, learned advocate strenuously

submits that even with regard to a service of notice of Court

proceedings, the remark "intimation given" or "unclaimed"

should be said to be proper service. His submissions find an

answer in the judgment delivered by this Court in the New India

Assurance company case (Supra).

13. The Trial Court in this case, while dealing with the

Miscellaneous application, has concluded in paragraph No. 15,

that the envelope was returned with the remark unclaimed. It

would not indicate whether the said litigant was available at his

residence or whether any responsible person competent to

accept the notice could have been intimated about the said

envelope. The Trial Court has relied upon the roznama dated

15/06/2013 and on perusal of the summons and the envelope

at exhibit 9, concluded that the observation of the Court that