LEELA MATHEW Vs. KRISHNAMOORTHY

JUDGEMENT

(1.) The trial court dismissed the suit which was reversed in appeal against which the Second Appeal was filed, which was then converted as a revision. The only contesting respondent is the first respondent. The second respondent being the husband of the revision petitioner. When notice was taken to the first respondent, it was returned with the endorsement "unclaimed". Merely because the notice was unclaimed for the first time, whether notice should be repeated for the second time or whether it should be treated as refusal is a matter for the court to decide and pass appropriate orders. As per Rule 51 (2) of the Kerala High Court Rules, where the postal article containing the notice is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the respondent or his agent had refused to take the delivery of the postal article, containing the notice when tendered to him, the Court shall declare that the notice had been duly served on the respondent. Therefore, when there is a clear refusal, a declaration shall be made by the court that notice is duly served. In this case, the notice was only unclaimed and hence necessarily, the matter ought to have been posted for orders before the court. Since the declaration as "duly served" was made by the Registry, of an unclaimed notice, it cannot be viewed as a proper declaration by the court as contemplated under Rule 51 (2) of the Kerala High Court Rules. In this case, the first respondent is the contesting defendant against whom a decree is sought for and it was in his appeal that the decree was reversed dismissing the suit. Notice was taken only once and there could be variety of reasons why the notice was not claimed; may be due to his absence in the station or he might be sick. So in such cases, before taking a strict view and to treat the same as evasion, in my view, one more chance should be given by repeating the notice especially in the factual situation that this revision is against the appellate decree dismissing the suit in favour of the first respondent.