DAVEED ASEERVADAM Vs. KRISHNA PILLAI GOVINDA PILLAI

JUDGEMENT

(1.) The summons issued to the petitioner defendant was issued by post under sub-r.(3) of R.9 of O.5 of the Code, not under R.20A. It was returned with the endorsement by the postman that it had been refused. Sub-r.(3) of R.9 says that, "an acknowledgement purporting to be signed by the defendant shall be deemed to be sufficient proof of service of such summons". It says nothing about an endorsement of refusal, and the implication is clear that that is not to be deemed to be sufficient proof of service. That rules out the application of the principle underlying sub-r.(2) of R.20A under which an endorsement of refusal may be deemed to be prima facie proof of service R.20A, it will be noted, provides for a subsequent summons, a summons having been already returned unserved thus lending some assurance to the endorsement of refusal, whereas sub-r.(3) of R.9 provides for the first summons; or of S.27 of the General Clauses Act; or of any presumption under S.114 of the Indian Evidence Act. Therefore, it is clear that there was not due service of the summons. (See in this connection the division bench ruling in Pichai Ammal v. Vellayya AIR 1963 Mad. 198 and the single judge ruling in Gopalan v. Sekharan 1954 KLT 924 which discuss the question very elaborately and with the conclusions reached in which we are in respectful agreement. To the observations to the contrary in the single judge ruling in Hariharan v. Kerala State 1967 KLT 322 we must express our respectful dissent. We might also observe that the statement in Para.3 of the report thereof implying that under R.9, a first summons may be served by post only on a defendant living outside the jurisdiction of the court is incorrect. Sub-r.(3) thereof permits service by post "where the defendant resides in India whether within the jurisdiction of the Court x x x or not"). Nevertheless, on the strength of the endorsement of refusal, the trial preceded ex parte and a decree was made against the defendant on 20-6-1968. In dismissing the application brought by the defendant on 1-9-1969 (under O.9 R.13) of the Code read with S.14 of the Kerala Small Clause Courts Act) for setting aside the ex parte decree the court below disbelieved the evidence of the defendant, that he came to know of the decree only on 4-8-1969 when notice of execution was served on him. It observed that knowledge of the passing of the decree must be imputed to the defendant since the summons was properly served on him, a statement which seems open to question even if the refusal were to be regarded as proper service. (The court did not go to the extent of saying that there was due service within the meaning of Art.123 of the Limitation Act although it seems to have implied that when it observed that, summons having been properly served the application for setting aside the decree ought to have been filed within 30 days of the passing thereof. Where there is due service, date of knowledge of the decree is, of course, irrelevant, time running under the article from the date of the decree). We see no reason for disbelieving the defendant's testimony that he came to know of the decree only on 4-8-1969 when he was served with notice of execution there is no evidence to the contrary. That being so, the summons in the suit not having been duly served, his application brought on 1-9-1969, within thirty days of the knowledge, ought to have been allowed.

(2.) We allow this petition with costs and allow the petitioner's application for setting aside the ex parte decree made against him we might mention that he has complied with the requirements of the proviso to sub-s.(1) of S.14 of the Kerala Small Cause Courts Act. The court below will restore the suit to its file and proceed to dispose of it as expeditiously as possible.