Bombay High Court
Jain Developers And 3 Ors vs Raja R. Chhabria And 4 Ors on 29 January, 2018
Bench: S.C. Dharmadhikari
COMAP-168-17.doc
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL No. 168 of 2017.
In
Suit No. 2808 of 2008
With
Chamber Summons No.139 of 2017
With
Notice Of Motion No.2513 of 2016
In
Suit No.2808 of 2008
1. M/s. Jain Developers, ... Appellants.
Office at 304/305, Raj Chambers,
Manchubhai Road,Opp.Pragati Shopping
Centre, Malad (E), Mumbai -400 097.
2. Rajesh Ramji Nandu, Adult,
R/at.Room No.2, Jaswant Niwas, 1st floor,
153, Modi Street, Fort, Mumbai-400 001.
3. Dhiraj Devraj Gada, Adult,
R/a. C-305, Pratap Nagar, Pushpa Park,
Daftary Road, Malad (E),Mumbai-097.
Vs
1. Raja R. Chhabria, Adult,
R/at. Flat No.103, Sujatha Niwas,
S.V. Road, Bandra, Mumbai-400 050.
2. Deviprasad Uditnarayan Mishra
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3. Sitla Prasad Uditnarayan Mishra,
Both Adults, R/at Stable No.28, Mogra
Village Rd., Andheri(E), Mumbai-069.
4. Ajay Kumar Tiwari, Adult.
R/at. Gupta Chawl, Room No.2,
Near Lajja Compound, Mogra Village,
Andheri (E), Mumbai -069.
5. Zahid K. Khan, Adult. ... Respondents.
R/at. Dexter Villa, St. Francis Road,
Vile Parle (W), Mumbai -400 056.
WITH
NOTICE OF MOTION (Appeals) NO. 1940 OF 2017
In
Commercial Appeal No. 168 of 2017
In
Suit No. 2808 of 2008
M/s Jain Developers & Ors ... Appellants/Ori.Plaintiffs
In the matter between:
M/s Jain Developers & Ors ... Appellants/Orig.Plaintiffs.
Vs.
Raja R. Chhabria & Ors ... Respondents.
---
Ms. Vidya Nair a/with Riddhi Rana i/by Vimala & Co. for the
Appellants.
None for the Respondents.
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---
CORAM : S.C. DHARMADHIKARI &
SMT.BHARATI H.DANGRE, JJ.
ORDER RESERVED ON : 11th December, 2017.
ORDER PRONOUNCED ON : 29th January, 2018.
JUDGMENT : (Per : Smt. Bharati H.Dangre,J).
1 Being aggrieved by the order passed by the learned Single
Judge on Notice of Motion No. 2513 of 2016 filed in Suit No. 2808
of 2008 thereby dismissing the suit for want of prosecution on the
sole ground that the plaintiffs have failed to serve the defendants as
directed by the court, the present appeal is filed.
2 Suit No. 2808/2008 was filed by the present appellants,
thereby seeking a declaration that there is a valid and subsisting
agreement of sale in respect of a piece of land situated at village
Mogra, taluka Andheri, near Silk Mill Compound, Andheri (East) in
accordance with the terms and conditions described in the
memorandum of understanding executed on 16/11/2007 between
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the plaintiffs and defendant no. 1 to 5. According to the appellants,
they had paid an amount of Rs.17 lakhs towards part payment
against the total consideration amount to respondent no.5 under
MoU for sale / transfer of the suit properties in favour of the
appellants, but there was failure on the part of respondent no.5 to
discharge his obligations under the MoU in not providing the
marketable title of the suit properties. The appellants were aggrieved
by further development that respondent no.5 indulged in an attempt
to sell the suit property in order to defeat the legitimate right of the
appellants.
In the said suit, notice of motion No.3354/2008 was filed
seeking ad-interim relief restraining respondents from creating third
party rights over the suit property and the Hon'ble Court by an order
dated 22/9/2008 granted ad-interim relief in favour of the appellants
and the same was confirmed till the final disposal of the suit by an
order dated 30/9/2014.
3 The suit being filed, the appellants attempted to serve the
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respondents through private service and courier with the copies of
plaint and notice of motion etc. But respondent no. 1 to 4 were not
found at their respective address as mentioned in the cause title of
the plaint and all the envelopes containing the notice and the
documents were returned with remarks "not found". Respondent
no.5 filed his appearance in the suit and appeared through an
advocate in the proceeding.
4 In the suit, writ of summons was not served on the
respondent Nos. 1 and 4 and when the matter was listed before the
Prothontoary and Senior Master on 22/6/2015, on an application, he
granted one more opportunity to the plaintiffs to serve the writ of
summons on the respondents. Another attempt was made by the
appellants to serve respondent No. 1 to 5 again on address mentioned
in the cause title through the bailiff and also through RPAD. The
summons were again returned with a remark "left, not known". The
plaintiff filed an affidavit of the clerk of the advocate and also of the
Bailiff on 24/7/2015 before the learned Prothonotary and Senior
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Master. On 22/9/2014 the appellants again moved an application for
issuance of fresh writ of summons by way of substituted service and
presented the same before the Prothonotary and Senior Master who
passed an order on 27/7/2015 permitting the appellants to serve the
writ of summons by way of substituted service. It is the case of the
appellants that in accordance with the rules of summons as
prescribed under the CPC, the appellants published the extract or writ
of summons on 1/10/2015 in two local newspapers being "Free Press
Journal" and "Navshakti". It is also the case of the appellants that the
writ of summons again came to be served to the respondents through
the Bailiff by registered post acknowledgment due on September 30,
2015 and the copies of writ of summons were affixed on the
conspicuous part on notice board of this Court on 7/10/2015. The
appellants again filed an affidavit of service before the Court
depicting service done on the respondents.
5 When the matter was listed before the learned Single
Judge of this Court on 14/3/2016, he was of the opinion that the
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service of writ of summons was not properly done and the learned
Prothonotary and Senior Master was not justified in granting leave to
serve by substituted service as there was no document to show the
address of respondent No. 2 to 4. The learned Single Judge observed
in the said order that in the Memorandum of Understanding which
was signed by defendant No.5 the address of defendant No.5 was
only reflected and he was pleased to observe that there was nothing
on record as regards address of defendant No. 2, 3 and 4, though the
plaintiffs had relied upon the document at Exh.C to the plaint which
was an Indenture between defendant No.1 and defendant No.5 and
an attempt was made to serve the said defendant No.1 on the said
notice. The matter was again listed before the Court on 29/8/2017.
In continuation of its earlier order the learned Single Judge noted
that there was no question of recalling the order dated 14/3/2016
and the learned Single Judge then proceeded to observe that the
plaintiffs had failed to serve the defendants as directed earlier and
therefore dismissed the suit for want of prosecution. It is this order
which is impugned in the present appeal.
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6 We have perused the notice of motion filed along with the
said appeal and also an affidavit supporting the said motion praying
for grant of stay to the effect and operation of the impugned order
dated 29/8/2017 passed by the learned Single Judge.
We have also taken on record the compilation of
documents tendered by the Counsel for the appellants Ms Vidya Nair.
7 The affidavit in support of notice of motion sets out
certain relevant facts. In paragraph 5 of the said affidavit, it is stated
by the appellants that an attempt was made to serve the respondents
through private service and vide courier. However, respondent No. 1
to 4 were not found at the respective address as mentioned in the
clause title of the plaint and all the envelopes sent to their respective
addresses were returned with remarks "not found" etc.. The affidavit
states that respondent no.5, however, appeared in the suit from time
to time. After reiterating the steps taken to serve the respondents,
which we have mentioned in paragraph above, the appellants have
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stated in their affidavit that they have complied with all the
requirements of Order V of the Code of Civil Procedure, 1908 in
every means possible. A specific statement is made in the affidavit to
the following effect in paragraph 6:-
"I say that on March 14, 2016 when the said matter was
listed before this Hon'ble High Court the learned Judge was
of the opinion that the service of writ of summons was not
properly done and that the learned Prothonotary and Senior
Master should not have granted leave to serve by
substituted service as there was no documents to show the
addresses of Respondent Nos. 2 to 4. This order was passed
despite the fact that the learned Judge was informed that
the Applicants had even published the extract of the writ of
summons in two daily newspapers. I say that the applicants
thereafter took out Notice of Motion No. 2513 of 2016 for
recalling the order dated March 14, 2016. In the meantime,
the applicants took a search in the office of the Sub-
Registrar of Assurances in order to see if there are any other
documents in respect of the suit property, which would have
mention of the addresses of the Respondent Nos. 1 to 4."
8 Section 27 of the Code of Civil Procedure, 1908 deals
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with summons to be served to the defendants. It provides that
where a suit has been duly instituted, a summons may be issued to
the defendants to appear and answer the claim and may be served in
the manner prescribed not beyond 30 days from the date of
institution of the suit. Order V of the CPC deals with service of
summons. Rule 2 mandates that every summons shall be
accompanied by a copy of the plaint. As per Rule 5, the summons
may be issued either for settlement of issues or final disposal of the
suit and it is mandatory to mention the date of appearance of the
defendants on receipt of service of summons. On receipt of the
summons, the defendant may produce the documents which he
intends to rely upon in his defence and if the summons is for final
disposal, he may produce his witnesses on whom he intends to rely in
support of his case. Rule 9 prescribes the manner in which the
summons are to be delivered to the defendant and the summons can
be delivered or sent either to the proper office to be served by him or
it can be served through a courier service approved by the Court.
Rule 10 provides mode of service of summons by delivery or
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tendering a copy thereof signed by the Judge or any officer
authorized on its behalf and sealed with the seal of the Court. Rule
17 prescribes the procedure when the defendant refuses to accept the
service or cannot be found and it requires the serving officer to affix
the copy of the summons on the door or some conspicuous part of the
house in which the defendants ordinarily reside or carries on business
or personally works for gain and to return the original to the Court
from which it was issued. Rule 18 mandates the serving officer to
endorse or annex or caused to be served, annexed or caused to be
served, annexed or to the original summons returned stating the time
and the manner in which the summons were served. When the
summons is returned unserved, the Court is duty bond to examine
the serving officer on oath and may make further enquiry about
service of such summons.
9 Rule 20 of the Code of Civil Procedure,1908, sets out
modalities for effecting substituted service and provides that where
the court is satisfied that there is reason to believe that the
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defendant is keeping out of the way for the purpose of avoiding
service, or that for any other reason the summons cannot served in
the ordinary way, the court shall order the summons to be served
by affixing a copy thereof in some conspicuous place in the court-
house and also upon some conspicuous part of the house (if any) in
which the defendant is known to have last resided or carried on
business or personally worked for gain, or in such other manner as
the court thinks fit.
However, as per sub-rule (1A) - Where the court acting
under sub-rule (1) and orders service by an advertisement in a
newspaper, the newspaper shall be a daily newspaper circulating in
the locality in which the defendant is last known to have actually
and voluntarily resided, carried on business or personally worked for
gain.
Sub-Rule (2) of Rule 20 provides that the service
substituted by order of the court shall be as effectual as if it has
been made on the defendant personally.
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Thus the perusal of the Order V of Rule 20 makes it
amply clear that a substituted service effected under the order of
the court shall be considered as effective service and, as if it had
been made on the defendant personally.
10 The learned single Judge has not taken into
consideration the effect of a substituted service. On institution of the
suit, the appellant attempted to serve the defendant the writ of
summons but the same was returned back with postal remarks "left -
not found" in respect of defendant no.1 and in respect of defendant
nos. 2 to 4 with a remark "unclaimed". Ordinarily, such a remark
denotes that the summons was served by delivery at the address
mentioned on it, meaning it was properly addressed and delivered.
That it is not claimed particularly even after due intimation from the
Post Office means it is taken as served. The Appellants, therefore,
preferred an application, seeking permission to serve the defendants
with writ of summons by way of a substituted service. A joint
affidavit of service was also filed in this court, demonstrating
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attempts to serve the defendants. The Prothonotary and Senior
Master on 27th July, 2015 made the following endorsement :
"PC : Advocate for Plaintiffs submits that when
attempt was made to serve with writ of summons upon
Defendants, packet returned back with postal remarks
"Left, Not Found". Affidavit of service dtd. 24.07.2015
is taken on file. Advocate for Plaintiffs seeks and
permitted to serve on Defendants with Writ of
Summons by way of Substituted Service under the
provision of Order V Rule 17 and 20 of C.P.C. 1908 by
publishing the extract of the writ of Summons in (1)
two daily local newspaper viz. One in English and
another in vernacular language widely circulated at
last known address shown in the Plaint (2) by affixing
true copy of Writ of Summons on the Notice Board
provided for, of this Hon'ble High Court (3) by sending
duplicate Writ of Summons at the residence of the
Defendants by Registered A. D.. The returnable date is
extended till 28.09.2015. Office to issue fresh writ of
summons. Adjourned to 28.09.2015."
On the permission being granted to serve the defendants
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by way of substituted service, the appellant published the extract of
service of summons in the Free Press Journal, which is circulated
in Mumbai on 1st October, 2015 and also in Marathi Daily Nav-Shakti,
published and circulating in Mumbai. Another affidavit of service
came to be filed before this court on 14/01/2016 which was sworn
by the bailiff and clerk attached to the office of the Sheriff of
Mumbai in which the deponent stated that as per request of the
plaintiff's Advocate the office had transmitted packet containing writ
of summons in the above matters at their above address by registered
post acknowledgement due on 30/09/2015 and the office receives
the original packets with marking either "not found" or
"unclaimed".
11 In the impugned order dated 29/08/2017, the learned
single Judge was pleased to refer the earlier order passed by this
court on 14/03/2016, where the court had observed that the
Prothonotary and Senor Master should not have granted the leave
to serve by substituted service and directed the plaintiff to re-serve
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defendants as required in law within four weeks from that date.
The learned single Judge failed to take into consideration
that a substituted service is also one of the mode of service and by
virtue of the Order V Rule 20, the service substituted by the
alternate mode shall be effectual as if it had been made on the
defendants personally. As per Order V, Rule 20 the court is
empowered to permit the substituted service when it is satisfied that
the defendant is keeping out of way for the purpose of avoiding
service or for some other reasons, the summons cannot served in the
ordinary way, then the court may permit to effect the substituted
service by affixing a copy thereof in some conspicuous place in the
court-house and also upon some conspicuous part of the house (if
any) in which the defendant is known to have last resided or carried
on business or personally worked for gain or in such other manner as
the court thinks fit. The court may thus permit a substituted service
either in the manner enumerated under the Rule 20 of Order V or in
such a manner as it thinks fit. The learned single Judge failed to
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consider that substituted service is also a service recognized in law
and the direction issued by the court on 14/03/2016, directing the
plaintiff to re-serve the defendants as required in law, is without
consideration of the provisions of Order V, Rule 20.
12 The learned single Judge was appraised of the
substituted service by fling an affidavit in support of the notice of
Motion where a prayer was made to recall the order dated
14/03/2016 on the ground that the plaintiff had even undertaken
substituted service by publishing the extract of writ of summons
in the two newspapers. The learned single Judge, however, refused
to accept the said statement and makes a reference to the order
dated 14/03/2016 and specifically referred to paragraph 2 of the
said order, where the learned single Judge has noted that the
Prothonotary and Senior Master ought not to have granted
permission to serve the defendants by substituted service. The
learned single Judge had then observed that when the plaintiff was
asked as to which is the address to which the writ of summons was
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sent, it was mentioned that it is the same address as is mentioned in
the cause title and upon asking as to what is the correct address of
the defendants, the counsel had referred to Exh. 'D' annexed to the
plaint, which is the memorandum of understanding which was
signed by the defendant no. 5 and reliance was placed on Exh.'C',
which is an Indenture between the defendant no. 1 and defendant
no.5 and it was the address that was mentioned in it. We fail to
understand with respect, as to how the plaintiff can be charged for
not giving the correct address. As we have noted that in the suit
filed by the plaintiff, he has categorically mentioned the address of
the 5th defendant and has attempted to serve the defendants on the
aforesaid address. The defendant No. 5 has put an appearance and
did not dispute about he being resident of the place mentioned in
the suit under the caption of defendant no.5. The appellants have
taken all efforts to serve the defendants through the bailiff and also
by RPAD. The packets issued to the respondents were returned with
remark "left, not known" or "unclaimed". The affidavit of the bailiff
is placed on record and based on the said affidavit the Prothonotary
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and Senior Master, on an application filed by the appellant, passed
an order on 27th July, 2015, permitting the service of writ of
summons on the respondents by way of substituted service.
Pursuant to the said order, the appellants published extract of writ
of summons on September 22, 2015 in two local newspapers being
- "Free Press Journal" and "Navshakti". Not only this, the bailiff once
again served the writ of summons to the respondents by
acknowledgment due on 30/09/2015 and it also affixed the copies
of writ of summons on October 07, 2015 on the conspicuous part of
the Notice Board of this Hon'ble Court. Thereafter, the appellants
have filed the affidavits of service dated 20/10/2015, 14/01/2016
and 18/01/2016, interalia, pointing out the service effected on the
respondents. The appellants have thus complied with the
requirement of Order V Rule 20 of the Code of Civil Procedure in
every means possible. With great respect, we are of the opinion that
the learned single Judge did not consider the provisions of Order V,
Rule 20 of the CPC and the effect of the substituted service.
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13 The present matter arises out of a suit filed in ordinary
Original Civil Jurisdiction of the High Court of Judicature at Bombay.
The Hon'ble High Court, being a chartered High Court, in exercise of
powers conferred upon it by Article 225 of the Constitution of India,
has framed Bombay High Court (Original Side) Rules. The power of
the Hon'ble High Court to make rules is also recognised in section
122 of the Code of Civil Procedure, 1908. Section 122 reads as
follows :
"S.122. Power to certain High Courts to make rules.--
[High Courts [not being the Court of a Judicial
Commissioner]] [***] may, from time to time after
previous publication, make rules regulating their own
procedure and the procedure of the Civil Courts subject
to their superintendence, and may by such rules annul,
alter or add to all or any of the rules in the First
Schedule.
Thus the High Court regulates its procedure through the said Rules
made by it and as such the Rule may alter or add to all or any of the
rules in the first schedule. Section 128 of the Civil Procedure Code
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provides for the matters for which the Rule may provide for and by
virtue of the said section, the Rules framed by the High Court, may
provide for : (a) the service of summons, notices and other
processes by post or in any other manner either generally or in any
specified areas, and the proof of such service.
Further section 129 of the Code also recognise the power
to make rules on the original civil procedure. Section 129 reads as
follows :
"S.129. Power of High Courts to make rules as to their
original civil procedure. - - Notwithstanding anything
in this Code, any High Court [not being the Court of a
Judicial Commissioner] may make such rules not
consistent with the Letters Patent [or order] [or other
law] establishing it to regulate its own procedure in the
exercise of its original civil jurisdiction as it shall think
fit, and nothing herein contained shall affect the validity
of any such rules in force at the commencement of this
Code.
14 Perusal of the said Rules, framed by the Bombay High
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Court in the form of "The Bombay High Court Original Side Rules"
shows that the said Rules deal with the procedure to be followed by
the High Court. The said Rules in Part-II include the Rules relating to
jurisdiction of the High Court on its Original Side. Chapter VI of the
Part -II deals with summons and the manner in which the summons
are to be issued and served on the defendant in various proceedings.
Rule 76 provides for mode of service of summons and it reads as
follows :
"R.76. Mode of service of summons.-- A Writ of
Summons shall be served within the local limits of the
Ordinary Original Civil Jurisdiction of the High Court by
personal service or, if the plaintiff so desires, by
registered post pre-paid for acknowledgement. Where
the Writ of Summons is to be served at a place situate
beyond the said limits, it may be served by registered
post pre-paid for acknowledgment. An acknowledgement
purporting to be signed by the defendant or an
endorsement by a postal servant that the defendant
refused service shall be deemed to be prima facie proof
of service. In all other cases, the Court shall hold such
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inquiry as it thinks fit and either declare the summons
to have been duly served or order such further service as
may in its opinion be necessary."
Rule 84 - provides for proof of service of Summons.-- Said Rule
reads as follows :
"R.84. Proof of service of Summons.-- Unless the Court
shall otherwise order, the service of a Summons to
appear and answer shall be proved by the vakalatnama
having been filed or when on vakalatnama has been
filed, by evidence showing that the Summons was
served in the manner provided by the Code of Civil
Procedure. Such proof shall ordinarily be by the
affidavit of bailiff and (as to such matters as the bailiff
cannot speak to of his knowledge) of the person who
attended the bailiff for the purpose of identification at
the time of service,, or of such other person or persons
as can speak to the identify of the person served or to
other matters necessary to be proved in respect of the
service."
Rule 86 provides for substituted service and Rule 87 provides for
dismissal of the suit if the summons is not served within six months.
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Rules 86 and 87 are reproduced as below : -
"R.86. Substituted service.-- Application for substituted
service of the Writ of Summons shall be made in
chambers. The application shall be supported by an
affidavit, and in the case of service through another
Court, by the deposition of the Officer who attempted to
make the service, and of such other person or persons as
may have accompanied him for the purpose of pointing
out the party to be served, stating when where and how
such service was attempted to be made."
"R.87. Suits to be placed on board for dismissal if
summons not served within six months. -- If the Writ of
Summons is not served within six months from the date
of the filing of the plaint, the Prothonotary and Senior
Master shall, unless good cause is shown, place the suit
on board for dismissal. The Prothonotary and Senior
Master shall notify such items on his notice board one
week before they are placed on the board for dismissal.
15 The Bombay High Court, Original Side Rules contain a
procedure for service of summons to the defendants and such writ of
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summons are to be served within the local limits of the Ordinary
Original Civil Jurisdiction of the High Court by personal service or, if
the plaintiff so desires, by registered post prepaid for
acknowledgment. In terms of Rule 76 an acknowledgment
purporting to be signed by the defendant or an endorsement by a
postal servant that the defendant refused service shall be deemed to
be prima facie proof of service. Such service has to be proved by the
evidence showing that the summons is issued and served in the
manner provided for in the Code of Civil Procedure. Such proof has
to be ordinarily in the form of the affidavit of the bailiff and of the
person who attended the bailiff for the purpose of identification at
the time of service or of such other person or persons who can
identify the person served. Rule 86 of the Bombay High Court,
Original Side Rules contain the provisions for substituted service
which is to be granted on an application being made, supported by
an affidavit by the deposition of the officer, who attempted to effect
service on such person or any other persons who is accompanied him
for the purpose of effecting such a service, stating the manner in
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which the service was attempted to be made.
The aforesaid procedure prescribed is consistent with the
procedure prescribed for service of summons as contemplated under
order V of the Code of Civil Procedure. The learned single Judge
has failed to take into consideration the said Rules framed by the
High Court on the Original Side, dealing with the service of
summons, when he issued a direction to serve the defendants as
required in law when an affidavit was already placed before the
Prothonotary, reflecting a valid service.
The learned single Judge has also not taken into account
section 27 of the General Clauses Act, 1897, which deals with the
manner of service by post and by virtue of the said section where
ever any [Central Act] or Regulation authorizes or requires any
document to be served by post, 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
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the ordinary course of post. Thus when a notice is served by a
registered post acknowledgment due, then it is a deemed service,
properly effected, unless the contrary is proved by the defendant.
The learned single Judge failed to take into consideration all the
material placed before him to reflect the efforts taken to serve
service on the defendants and the endorsement of "refused" or
"unclaimed" would amount to a service by applying provisions of
section 27 of the General Clauses Act, 1897. The said aspect of the
matter, with due respect, has been completely lost sight of by the
learned single Judge while dismissing the suit on the ground that the
summons were not served on the defendants.
16 We may gainfully refer the judgment of the Hon'ble Apex
Court in the case of Gujarat Electricity Board and Anr. vs.
Atmaram Sungomal Poshani, reported in AIR 1989 Supreme Court
1433, where the Apex Court while dealing with the presumption
under section 27 of the General Clauses Act, was pleased to observe
as follows in para 8 :
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"8. There is presumption of service of a letter sent under
registered cover, if the same is returned back with a postal
endorsement that the addressee refused to accept the same. No
doubt the presumption is rebuttable and it is open to the party
concerned to place evidence before the Court to rebut the
presumption by showing that the address mentioned on the
cover was incorrect or that the postal authorities never
tendered the registered letter to him or that there was no
occasion for him to refuse the same. The burden to rebut the
presumption lies on the party, challenging the factum of
service. In the instant case the respondent failed to discharge
this burden as he failed to place material before the Court to
show that the endorsement made by the postal authorities was
wrong and incorrect. Mere denial made by the respondent in
the circumstances of the case was not sufficient to rebut the
presumption relating to service of the registered cover. We are,
therefore of the opinion that the letter dated 24.4.1974 was
served on the respondent and he refused to accept the same.
Consequently, the service was complete and the view taken by
the High Court is incorrect.
The Hon'ble Apex Court in case of M/s. Madan and Co.
vs. Wazir Jaivir Chand, reported in AIR 1989 Supreme Court 630,
while dealing with the issue of a notice sent by a landlord to a
tenant, demanding arrears of rent and the same being returned on
account of non-availability of the addressee, concluded that all that
the landlord can do to ensure an opportunity to the tenant to post a
prepaid registered post letter acknowledgment due, containing the
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tenant's correct address and once that letter is delivered to the post
office over which the landlord has lost his control, it is to be
presumed that it has been delivered to the addressee under section
27 of the General Clauses Act. The Hon'ble Apex Court has
observed so in paragraph 6, which is reproduced below :
"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 Clause (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
(acknowledgement 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 Section 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
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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 Order 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.
17 The presumption under section 27 of the General Clauses
Act is once involved and applied, the burden shifts on the defendant
to rebut the presumption by adducing evidence that there was no
service of notice upon him. In the case in hand, the plaintiff had
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taken the steps to serve the defendants and also filed affidavits to
that effect from time to time and has also effected the substituted
service and tendered an affidavit to that effect. The learned Single
Judge, however, has apparently erred in concluding that it is not a
service as required in law. The learned Single Judge by invoking
Rule 87 of the Chapter VI, Part-II of the Bombay High Court (Original
Side) Rules, was pleased to dismiss the suit since the summons were
not served within six months from the date of the filing of the
plaint. The learned single Judge has rather been harsh on the
plaintiff, as the plaintiff has taken all the steps to serve the
defendants and had put all the material before the learned single
Judge, pointing out the steps taken by the plaintiff for serving the
defendants. No contrary material was produced before the Court to
show that the endorsement was made by the processor of service
and the affidavit filed before the court to be either false or
erroneous. The rejection of the suit by the learned single Judge,
therefore, is extreme step which the learned single Judge has
adopted, causing grave prejudice to the plaintiff / appellant.
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18 In these circumstances, the service effected on the
defendant nos. 1 to 4 is "effective service". The order passed by the
learned single Judge which records that the plaintiffs have failed to
serve the defendants and therefore, dismissed the suit for want of
prosecution is not sustainable. We feel that the appellants have
taken all steps to serve the writ of summons on the address known
to the appellants. They had specifically filed an affidavit stating that
the defendants were avoiding service and that it was clear from the
affidavit of service filed on record, based on which the Prothonotary
and Senior Master of this court has granted permission to effect
substituted service and which was accordingly effected on the
respondents, we do not feel that the order passed by the learned
single Judge is sustainable in law.
19 In the result, the appeal is allowed
and we set aside the impugned order dated 29th August, 2017
passed by the learned Single Judge of this Court, thereby
dismissing the Suit No.2808 of 2008 with Chamber Summons
No. 139 of 2017 with Notice of Motion No. 2513 of 2016
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in the said suit, for want of prosecution.
The Suit No. 2808 of 2008 is restored to file and the
appellants are permitted to move appropriate Notice of Motion for
seeking appropriate reliefs, as is advised.
[SMT. BHARATI H.DANGRE, J.] [S.C. DHARMADHIKARI, J.]
.....
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