J.R. Balan vs M.L. Mehta
1995 Latest Caselaw 600 Del

JUDGMENT

Manmohan Sarin, J.

(1) The petitioner has filed this petition under Article 227 of the Constitution of India, assailing the order dated 17.5.1995 passed by Shri M.L. Mehta, Civil Judge, Tis Hazari, Delhi. By the impugned order dated 17.5.1995 the learned Civil Judge had rejected the respondent's application for reviewing the order dated 15.4.1995. The learned Civil Judge by order dated 15.4.1995 had directed that the fresh summons be issued to the defendant in the suit filed under Order 37 of Code of Civil Procedure.

(2) The petitioner's grievance is that the trial court in terms of order V Rule 19-A Civil Procedure Code . was required to declare that the summons have been duly served on the defendant and proceed to decree the suit in the absence of an application for leave to defend.

(3) The facts giving rise to this petition may briefly be stated as under:- (I)THATthe petitioner had filed a suit under Order 37 Civil Procedure Code . for recovery of Rs. 53,200.00 against one Smt. B.Bandopadhyay on the basis of certain cheques which had been dishonoured. (ii)The suit was registered on 9.2.1995 and summons were directed to be issued under Order 37 Civil Procedure Code . on the petitoner's filing process fee and registered A.D. cover for 11.4.1995. The petitioner did not file copies of the documents to enable issuance of summons together with the plaint and documents, which was done on 15.3.1995. (iii)That summons dated 15.3.1995 were issued by ordinary process. The report of the process server on the said summons was that Smt. B. Bandopadhyay was not found at her residence. Summons had been issued for 11.4.1995, however, due to 11th to 14th of April, 1995 being declared to be unscheduled holidays, the case was taken up on 15.4.1995. The learned Judge did not find on record the postal receipt with regard to the issuance of summons by Registered A.D. The learned Civil Judge in the absence of the postal receipt and the fact that the case was being taken up on 15th instead of 11th, coupled with the fact that the report of the process server not finding defendant at the address, directed issuance of fresh summons, on filing of process fee and registered A.D. cover for 19.9.1995.

(4) Learned counsel for the petitioner Mr. Banerjee has urged before me that the petitioner had duly complied with the requirement of filing the process fee and registered A.D. cover and the petitioner cannot be made to suffer on account of any omission of the court staff or for the absence of the postal receipt on record.

MR.Banerjee submits that in accordance with the mandate of Order V rule 19-A, the registered envelope having not been received back within 30 days from the date of issuance of summons, the mandatory declaration regarding deemed service should have been made. Mr. Banerjee submits that the petitioner was entitled to a declaration of service and the consequences which follow viz., decree in the petitioner's favor in the absence of leave to contest.

(5) I am afraid I am unable to agree with the submission of the counsel for the petitioner. The summons could only be issued on 15.3.1995, due to the petitioner not filing copies of the documents earlier. Thus a period of 30 days would not even have elapsed by 11th of April, 1995 to raise the presumption under Order V rule 19-A. Be it may, due to the intervening holidays the case was taken up after the holidays on 15.4.1995. The learned Civil Judge did not find the postal receipt on record. In the absence of the postal receipt on record the presumption regarding issuance of summons by registered A.D. post could not even be raised on the 15th April, 1995. The omission or negligence of the court staff in not placing the postal receipt inspite of the summons purported to have been sent by registered A.D. cover is a separate matter. Order dated 15.4.1995 and order dated 17.5.1995, do not suffer from any error of jurisdiction or material irregularity. The said orders have rather prevented a miscarriage of justice, which the defendant would have suffered had the declaration as claimed by the petitioner been made followed by a decree.

THE trial court should enquire into the circumstances in which the postal receipt was not placed on record and is even still not on record. Appropriate corrective measures be taken.

(6) The petition is dismissed with the above observations/directions. The trial court record be returned forthwith.