SHYAM NARAYAN PRASAD Vs. BENOY KUMAR CHOURASIA

JUDGEMENT

(1.) THIS appeal arises out of the judgment dated 1st June, 1982 passed by the learned Judge, second Bench, City Civil court. Calcutta in Misc. Case No. 901 of 1981 dismissing the application under Order 9 Rule 13 of the Code of Civil Procedure made by the defendant-petitioner-appellant.

(2.) IT appears that Title Suit No. 1596 of 1980 was instituted by the plaintiff respondent against the defendant appellant in City Civil Court, calcutta for recovery of possession of premises No. 13/1, Surendra nath Banerjee Road, Calcutta fom the defendant appellant on the ground that the said defendant was a licensee and his licence had been terminated. It appears that the said suit was instituted on 6th August, 1980 and the Registrar of the City Civil Court, Calcutta directed for service of summons in the ordinary manner and also under registered post under Order 5 Rule 19a of the Code of Civil Procedure fixing 18th September 1980 as the date of return of the summons and appearance of the defendant. On 18th September, 1980, it appears that the Registrar of the City Civil Court after perusal of the report of the process server for service of summons in the usual manner had come to the finding that the said summons had not been properly served but as it appeared from the endorsement by the postal peon on the cover sent under registered post that the said registered cover could not be served on the defendant because the same refused by him, the registrar directed that the record should be placed before the learned judge, second Bench, City Civil Court for orders. On 20th September, 1980, the learned Judge looked to the report of the Registrar of the city Civil Court and directed that the suit should be fixed for exparte hearing on 5th December, 1980. The suit was ultimately decided exparte and the decree for eviction was passed by the learned Judge on 6th may, 1981. On 18th September, 1981 the defendant-petitioner-appellant made an application under Order 9 Rule 13 of the Code of Civil Procedure before the learned Judge for setting aside the exparte decree on the ground that no service of Summons had been made on the said defendant and he had no occasion to know about the pendency of the said suit. On the said application under Order 9 Rule 13, Misc. Case no. 901 of 1981 was started and against the dismissal of the said Misc. Case by the learned Judge, the instant appeal has been preferred by the defendant-petitioner-appellant. It appears from the judgment of the learned Judge dismissing the said Misc. Case that the learned Judge considered the bailiff's report regarding service of summons of the said suit on the defendant being Ext. 'a', from the bailiff's report it transpires that the plaintiff attempted to serve the said summons personally on the defendant in presence of the two witnesses but since the defendant had refused to accept that summons the same had been served by affixing in presence of the said witnesses and the signatures of the said witnesses had been obtained and such signatures were Exts. A/1 and A/2. The said witnesses were examined in the Misc. Case and on consideration of the bailiff's report and the evidence adduced by the said witnesses the learned Judge was of the view that the said summons had been duly served, it was also held by the learned Judge that the witnesses were disinterested witnesses and there was no reason to disbelieve them and mere denial by the defendant-petitioner that the summons had not been served on him should not be accepted. So far as the Service of summons by registered post is concerned, the learned Judge has noted that the registered envelope had come back with the endorsement 'refused' by the postal peon and the postman, sri Amal Kumar Chakrabarti was examined as a witness (O. P. W. 4 ). That said witness has stated in his evidence that he had tendered the registered letter to the defendant but he refused to accept the same. The learned Judge was of the view that as the postman was a disinterested witness, there was no reason to disbelieve him and the denial of the defendant-petitioner, therefore, should not be accepted.

(3.) MR. Roy Choudhury, the learned Counsel appearing for the appellant petitioner, has contended that the Registrar who was delegated with power to scrutinise the reports of the process server and to give suitable direction in the matter of service, of summons was not satisfied that the service of summons by the process server should be accepted and by his order No. 2 dated 18th September, 1980, the learned Registrar noted that the summons in the ordinary manner had not been properly served. As the service was also sought to be effected by registered post and the registered cover had been received by the Court with the endorcement of the postal peon Refused, the Registrar sent the matter before the learned Judge for appropriate orders. Mr. Roy Choudhury has contended that unfortunately the learned Judge by his order no. 3 dated 20th September, 1980 did not express any opinion as to whether or not the service by registered post on the basis of report of the postal peon should be accepted as a good service and the learned judge had only directed that the suit should be fixed on 5th December, 1980 for exparte hearing. Mr. Roy Choudhury has submitted that it is apparent from the aforesaid facts that the learned Judge, Second bench, City Civil Court, Calcutta who had passed the exparte decree in the said Title Suit did not Hake any contrary view on the report of the Registrar to. the effect that summons in the ordinary process had not been properly served. Accordingly, it should be accepted that the learned Judge endorsed the said report of the learned Registrar that the summons had not been properly served in the usual manner. Mr. Roy Choudhury has contended that it was an incumbent duty of the learned Judge to consider the report of the postal peon about refusal of service of the registered cover containing summons of the said suit and to accept or reject such service by registered post on the basis of the report of the postal peon. In the instant case, admittedly the learned Judge has not expressed any opinion whatsoever but has only fixed the suit for exparte hearing on a subsequent date. Mr. Roy Choudhury has contended that on a reference to Order 5 Rule 19 of the code of Civil Procedure it will be quite evident that the learned Judge is required to consider the process server's report regarding service, of summons and on such consideration the learned Judge is to accept or to reject the report of the process server. He has contended that the learned Judge is required to exercise his judicial discretion for accepting or rejecting the alleged service of summons on a party and if such judicial discretion is not exercised by him then mechanical fixation of the suit for exparte hearing is patently illegal and is liable to be set aside on an application under Order 9 Rule 13 C. P. Code made by the defendant. In support of this contention, Mr. Roy Choudhury has referred to a Full Bench decision of the Madras High Court made in the case of Parasurama Odayar v. Appadurai Chetty and Ors. reported in AIR 1970 Madras, page 271. The Madras Full Bench has held in the said decision that the Court should declare expressly that the summons has been duly served and although there is no form for such declaration but such declaration in essence must be there. It is very important. that the presiding officer should apply his mind and should consider as to whether or not the summons has been duly served. Mr. Roy Choudhury has also referred to a Bench decision of the Kerala High Court made in the case of Pazhekottal Nabeessu v. Pazhekottal Kunhamina and Ors. reported in AIR 1978 Kerala, page 143. It has been held in the said decision that mere endorsement on the summons as to refusal to accept the same cannot constitute sufficient service under Order 5 Rule 19 unless there is a declaration that the summons has been properly served by the learned Judge. It appears that the said decision of the Kerala High Court was made relying on another decision of the Kerala High Court made in the case of Daveed Aseervadam v. Krishna Pillai Govinda Pillai reported in 1970 Kerala Law Times, page 1907. Mr. Choudhury has also referred to a Single Bench decision of this Court made in the case of Kashitish Chandra Kayal v. Abinash chandra Halder reported in 86 CWN page 100. This Court has also held in the said decision that it was obligatory on the part of the learned judge to consider as to whether or not summons had been duly served and to get a finding to that effect. It appears that the learned Judge in the said decision has also relied on the Full Bench Decision of the madras High Court reported in AIR 1970 Madras, Page 271. Mr. Roy choudhury has also referred to a Bench decision of the Assam High court made in the case of Bampatlal Keshan and Ors. v. Baliprasad Shah and Ors. reported in 54 CWN page 92. The learned Judge has noted that there is a conflict of authority on the point that as to whether or not a declaration that proper service had been effected is required to be made by the learned Judge under Order 5 Rule 19 of the Code of Civil Procedure. The learned Judge has, however, held that even if it is assumed that an express declaration of due service is necessary under the rule, omission of such declaration Will be an irregularity on the basis of which a party adversely affected by such omission of declaration may ask for an opportunity of being heard. Mr. Roy Choudhury has, therefore, submitted that simply because the learned Judge has directed the suit to be heard exparte on a subsequent date and as a matter of fact has heard the said suit exparte and decided against the defendant, it cannot be held that the learned Judge had accepted that the summons had been duly served. Mr. Roy Choudhury has contended that unless the learned Judge takes into consideration the report of the process server or the postal peon about the service of summons arid takes one view or the other, it cannot be held that he has exercised his judicial discretion and function under the provisions of Order 5 rule 19 of the Code of Civil Procedure. Mr. Roy Chowdhury has contended that the position has not been changed because of addition of rule 19a under Order 5 in the Code of Civil Procedure by the Amendment act of 1976. He has also submitted that for ensuring speedy service of summons, the provisions of Order 5 Rule 19a has been introduced but the basic requirement of the learned Judge to consider the report of the process server and/or the postal peon about the service of summons and to take one view or the other remains unaffected even after incorporation of Rule 19a of Order 5 of the Code of Civil Procedure. Mr. Roy Chowdhury has contended that it therefore must be held that there has been a gross irregularity by the learned Judge in proceeding to hear the suit exparte and the exparte decree has resulted in a serious failure of justice to the defendant. Mr. Roy Chowdhury has also submitted that at the hearing of the: said Misc. Case, the learned Judge also proceeded erroneously in taking into consideration the validity of the service of summons by the process server of the court. He has submitted that there was no occasion for the learned Judge to take into consideration of the alleged service by the process server because the Registrar had not accepted the same and no contrary view had been taken by the learned Judge when the report of the Registrar about unsatisfactory service by the process server had been placed before the learned Judge. Mr. Roy Choudhury has submitted that in passing the impugned judgment in the Misc. Case, the learned Judge appears to have been influenced to a great extent because of his finding that the service of summons in the ordinary process had been duly effected but the defendant had refused to accept the same. Mr. Roy choudhury has submitted that so far as the service of summons by the registered post is concerned, the learned Judge has relied on the evidence of the postal peon that he had effected such service on the defendant, but the defendant refused to accept the same. The learned judge is of the view that the postal peon is a disinterested witness and as such his deposition should be accepted. Mr. Roy Choudhury has drawn the attention of the court at the hearing of the appeal that the postal peon should not be believed because he has not been telling truth in his deposition. It is the deposition of the postal peon that he had been to 13/1 S. N. Banerjee Road on two occasions viz, on 30th august, 1980 and 1st September, 1980. On the first date the postal peon did not find the addressee but on the second day the addressee refused to accept the postal cover when tendered by him. Mr. Roy choudhury has submitted that although the postal peon has stated that he knows the addressee defendant Shyam Narayan Prasad from before hand as he has delivered letters to him previously and the said statement was believed by the learned Judge on the ground that the postal peon was a disinterested witness, the learned Judge has failed to take note that the very same witness had to admit in the cross-examination that he did not remember if on any previous occasion he had gone to 13/1, surendra Nath Banerjee Road, Calcutta. If the postal peon had not gone to 13/1 Surendra Nath Banerjee Road on any previous occasion there cannot be any occasion to deliver letters by him at the said address to the defendant so that by such process he had the occasion to know him personally. Mr. Roy Choudhury has submitted that had the evidence of postal peon been considered in its proper perspective, the learned Judge could not have accepted the deposition of the postal peon that he had tendered the registered letter to the defendant but the same was refused.