MADHUSUDAN PODDAR Vs. ARABINDA PODDAR

JUDGEMENT

(1.) This Rule is directed against an order passed by the Appellate Court allowing the Misc. Case under Order 9, Rule 13 of the Code of Civil Procedure. It appears that the plaintiff-petitioner instituted a suit in the Third Court of the Munsif at Sealdah being Title Suit No. 129 of 1971 against the defendants for recovery of possession of the suit premises in their possession. The Summons was served under the ordinary process by affixation on alleged refusal. But on June 17, 1971, the learned Munsif recorded the following order "Plaintiff flies Hazira, Summons served. But service is not satisfactory. For better precaution plaintiff to issue R.P.C. upon the defendant by Registered Post with acknowledgment due." Thereafter registered post cards were attempted to be served on the two defendants at their address given in the plaint but the post cards were returned with the endorsement "Refused". The defendants did not appear in the suit and the suit was decreed ex parte on Feb. 4, 1972, It is stated that the decree-holder obtained possession of the suit premises comprising two rooms in the first floor of premises No. 52, Dr. S.P. Mukherjee Road, Dum Dum on Feb. 15, 1973 by breaking open the padlock in execution of the ex parte decree.

(2.) According to the defendant-opposite parties they came to know for the first time on Feb. 21, 1973, that the padlock on the doors of the rooms had been broken and new padlock had been put in. On making enquiries they came to know that the possession of the two room was taken as aforesaid end thereafter on further enquiry they came to know of the said decree and the execution thereof, On March 16, 1973, they filed an application for setting aside the ex parte decree on the ground that the Summons and all Court processes in the suit were suppressed illegally and the petitioner fraudulently obtained possession of the room in execution of the said decree. On this application Misc. Case No. 38 of 1973 was started which was contended by the plaintiff-decree-holder. The learned Munsif was of opinion that the refusal of the post cards raised the presumption that the defendants were trying to avoid service of summons and considering these circumstances he was not inclined to believe the evidence of P.W. 1 on behalf of the opposite parties denying the service by the process-server or the postal peon. Accordingly, the learned Munsif considering the facts and circumstances of the case accepted the return of the process-server to the effect that service was affected by affixation after refusal of the defendants to accept the same. The registered post cards were sent as precautionary measure and further the post cards contained concise statement of the plaint by setting the names of the parties to the suit described as title suit as also the date of hearing which were also refused. Accordingly the Misc. case was dismissed.

(3.) On appeal the learned Appellate Court was of opinion that there was no service of Summons by the process-server as there was nothing to indicate that the Mokabila witnesses were of the locality which was the ground for believing that the service was not satisfactory. About the service by registered post card the Appellate Court held that it was not a substitute for the service of Summons as it was not accompanied by a copy of the plaint. Reliance was also placed on the decision in M.G. Dua v. Balli Mal Nawal Kishore. The Court held therein that, if any other mode of service was tried in the first instance and it was unsuccessful, it was not open to the Court, in view of the prohibition contained in the proviso to Rule 10, Order V to endeavour to effect service on the defendant by registered post. The Punjab decision, however, should not have been relied as under a proviso added by Punjab High Court to Rule 10 of Order V subsequent service, after failure of first service, cannot be by registered post.