PICHAI AMMAL Vs. VELLAYYA THEVAR ALIAS OCHU THEVAR

JUDGEMENT

(1.) THIS civil revision petition is filed by the plaintiff in O. S. No. 113 of 1947 on the file of the Sufi-Court, Madurai, against an appellate order (original order having dismissed the application) setting aside an ex parte decree which was passed on 15th April 1958, for mesne profits. The application for setting aside the ex parte decree was tiled : nearly four months after the decree was passed on the ground that there was no proper service of summons on the defendant who consequently did not come to know of the decree till sometime before he filed the application. It was not disputed that the first summons was sent to the defendant by registered post and was returned with the endorsement that it was refused by the first defendant. The postman who has been examined as a witness and whose evidence has been accepted by both the Courts below has stated that he tendered the registered cover containing the summons but that the latter declined to accept the same. No fresh summons was issued to the first defendant. The Court accepted the service as sufficient, set the first defendant ex parte and passed the decree. The question now is whether mere tendering of summons by the postman would tantamount to due service of summons. The question was answered in the negative in Murugayya kangiar v. Marudayammal, 1956-2 Mad LJ 86, and Shri Krishna Rice Mills v. Rajagopal Konar 1958-2 Mad LJ 143 : (AIR 1958 Mad 522 ). Ganapatia Pillai J. before whom this civil revision petition first came up for hearing, had taken a contrary view in C. R. P. no. 762 of 1958, though the learned Judge did not specifically refer then to the two decisions referred to above. As the case involved an important question of procedural law the learned Judge (in this case) referred the matter for decision by a Bench.

(2.) SERVICE of summons on the defendant is regulated by the provisions of Order V c. P. C. Rule 9 thereof, in its original form as it exists in some of the other States, contemplates only personal service of summons. Rule 17 provides that where the defendant refuses to receive summons, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides and carries on business or personally works for gain and shall then return the original summons to the Court with a report of the circumstances under which summons could not be effected in the proper way. Rule 19 provides for a case where summons is returned under the provisions of Rule 17. The Court after perusing the report and also, if necessary, examining the serving officer, is empowered to declare that the service was either sufficient or order fresh summons being taking out.

(3.) IN the year 1951, this Court, by virtue of its powers under Section 122 C. P. C. introduced Sub-clause 3 to Rule 9 providing for sending of the first summons by registered post to the defendant. The rule states,