P SUNDARAM Vs. SESHA AIYAR MAHADEVA AIYAR

JUDGEMENT

(1.) This is a revision petition by the defendant whose application for setting aside the decree passed ex parte was dismissed by the courts below. The application was filed within thirty days of the decree so that the only question arising for decision is whether there was proper service of summons on the defendant. Two attempts were made to serve the defendant but both the process servers reported that the defendant was not residing at the address given in the summons. The court then ordered the plaintiff to take out summons by post. Accordingly summons was issued by registered post and it was returned by the postman with the endorsement Refused. The court treated this as a valid service and the decree was passed ex parte. The petitioners case is that he was not residing there at that time and that he was not aware of the pendency of the suit or the passing of the decree, until he filed the application. The courts below came to the conclusion that the defendant was residing at the address shown in the summons and that he actually refused to accept summons sent by post. The application was accordingly dismissed.

(2.) The main point urged on behalf of the petitioner is that there is no legal evidence of support the conclusions reached by the courts below and that the evidence on record supports the petitioners contention that the summons was not served on him. Two process servers who were directed to serve the summons have made endorsements that the defendant was not residing at the address given and one of them has given evidence in this enquiry that the endorsement made by him on the summons is true. He was not cross examined by the plaintiff. These endorsements are properly attested by the witnesses as required by the Civil Rules of Practice. The defendant has also deposed to the effect that he was not residing at the address to which summons was sent. The courts below have held that the endorsement by the postman must be presumed to be true and that the evidence adduced by the defendant is not sufficient to rebut the presumption of correctness of that endorsement. The presumption must apply to the endorsement made by the process servers attached to the court also. O.5 R.10 as in force in this State reads as follows:-

(3.) The proviso to R.10 is different in Patna where it is provided that an acknowledgment purporting to be signed by the defendant or an endorsement by the postal servant that the defendant refused to take delivery may be deemed by the court issuing the summons to be prima facie proof of service. The provision is similar to the rule in force in Nagpur. The rule as amended by this court is similar to O.5 R.21(a) of Bombay and Sind. The High Court of Bombay has consistently taken the view that even though a court may proceed to pass a decree ex parte on the strength of the endorsement by the postman that the packet was refused by the defendant the decree should be set aside when the defendant comes and swears that it was neither tendered nor refused. See Sunder Spinner v. Nakan Bhula (AIR 1922 Bom. 377(1) and Appabhai Notibhai v. Laxichand Zavarchand and Co. (AIR 1954 Bom. 159). In Butto Kristo Roy and others v. Gobindaram Marwari and others (AIR 1939 Patna 540) Chatterji, J. observed: