APPABHAI MOTIBHAI Vs. LAXMICHAND ZAVERCHAND AND CO

JUDGEMENT

(1.) AN interesting question arises in this revision application as to the effect of service of a summons by a registered post under Order 5, Rule 21a, Civil P, C. , 1908. The 'ex parte' decree was passed on 22-6-1944, and the defendant was served by registered post. The packet was returned marked "refused". Execution proceedings were taken out in 1951 arid it was at that time according to the defendant that he came to know that a decree had been passed against him and he applied to set aside the 'ex parte' decree. The trial Court dismissed the application, and in appeal the learned District Judge has confirmed that decision. The defendant in his affidavit on the application to set aside the 'ex parte' decree stated that he was not in Ahmedabad at the material time and he therefore did not receive the registered packet containing the summons.

(2.) IN -- 'sunder Spinner v Makan Bhula', AIR 1922 Bom 377 (1) (A) a Division Bench of this Court laid down that the Court must allow the defendant a retrial, if, after the decree has been passed against him on evidence that the summons was sent by registered post and returned refused, he appears and denies that the packet had ever been delivered to him by the postal authorities. What is urged by Mr. Shastri is that although that decision was good law at the time when the decision was given, by reason of the enactment of Rule 21a in Order 5 that decision is no longer good law. Rule 21a was enacted subsequent, to the decision in -- 'sunder Spinner v: Makan Bhula (A)'. Rule 21a is an enabling rule and it permits the Court to cause a summons to be served by registered post. The rule further provides that an acknowledgment purporting to be signed by the defendant shall be deemed by the Court issuing the summons to be 'prima facie' proof of service. It is clear, therefore, that when a registered packet is returned marked refused, it is not 'prima facie' evidence of proof of service. The rule goes on to say :

(3.) ORDER 5, Rule 21a, merely deals with the mode of service. As to whether a service is proper or not, where the service is effected by registered post, must be determined by the principle enunciated by Sir Norman Macleod and Shah J. in -- 'sunder Spinner v. Makan Bhula (A)', and in my opinion that principle is perfectly sound. Ordinarily, service must be effected personally upon a defendant. Order 5, Rule 21a, gives a special facility to the Court in these modern days to effect service by registered post. But even So that convenience must be properly circumscribed so as not to defeat the ends of justice, and it would be a very serious thing if a defendant was not entitled to have an 'ex parte' decree set aside although that decree was passed on an endorsement made by a postman that the packet had been offered to the defendant and he had refused it. Therefore, in my opinion, the Courts below were wrong in refusing to set aside the 'ex parte' decree on the application made by, the defendant.