PARIMAL PAL CHOUDHURY Vs. KALIDAS BANERJEE

JUDGEMENT

(1.) The opposite party instituted a suit in the 4th Court of the Munsif at Alipore for eviction of the petitioner and the said suit was registered as Title Suit No. 215 of 1976. On Sep. 13, 1976, the day fixed for appearance of the defendant in that suit, the learned Munsif passed the following order :

(2.) On November 9, 1976 the plaintiff filed a petition praying for service of summons upon the defendant by registered post with acknowledgement due and the said prayer was allowed. The registered cover containing the summons came back with the endorsement 'refused' and as such, the learned Munsif by his Order No. 6, dated January 10, 1977 fixed April 7, 1977 as the dale for ex parte hearing of the suit as no appearance was made by the defendant on the said date. In terms of the said order the suit was taken up for ex parte hearing and decreed. Thereafter on Jan. 13, 1979 the petitioner filed an application for setting aside the said decree under Order 9, Rule 13 of the Code of Civil Procedure, hereinafter referred to as the Code, read with Section 151 of the Code. In that application the petitioner contended, inter alia, that he was not served with any summons of the suit, nor did he refuse to receive the summons when allegedly tendered by the peon and that he came to know of the institution of the said suit by the opposite party only on Jan. 6, 1979 when a process server of the Court along with others went to deliver khas possession of the suit premises. The teamed Munsif took the view that the refusal of summons amounted to service of proper summons and that the petitioner failed to make out surticient ground to set aside the ex parte decree. Accordingly, he rejected the application tiled by the petitioner under Order 9, Rule 13 of the Code. Against such rejection, the petitioner preferred an appeal which was dismissed by the learned Subordinate Judge, 5th Court, Alipore. Thereafter, the petitioner moved this Court by filing this revisional application, which has been heard as a contested one.

(3.) Mr. Bagchi, the learned Advocate appearing for the petitioner, firstly contended that the learned Munsif erred in law in directing service of summons by registered post under Order 5, Rule 20A of the Code as the pre-requisites for taking recourse to the said provision was not present. According to Mr. Bagchi, service of summons by registered post under the above Rule could be ordered only in a case where the summons was returned unserved and not in a case, as in the present one, where the service of summons through process server was found by the Court to be unsatisfactory. In support of his conleniion, Mr. Bagchi relied upon a judgment of this Court in the case of T. C. Banerjee v. B. V. S. Rao, and also upon an unreported judgment of this Court in the case of Sambhu Nath De V. Kunailal Banerjee (S. A. 396 of 1977 dated February 29, 1980).