ROOPCHAND RANGILDAS Vs. HAJI HUSSEIN HAJI MAHOMED SOUDAGAR

JUDGEMENT

(1.) The first question to be answered is, whether Rule 107 of the High Court Rules falls under Clause 27 of the General Clauses Act. Reading Sections 129 and 131 of the Code of Civil Procedure together, I think that that question must be answered in the affirmative. Noting a judgment of Robertson, J. in Baluram Ramkissen v. Bai Pannabaii (1910) I.L.R. 35 Bom, 213. I may incidentally remark that in none of the cases commented on by that learned Judge was Clause 27 of the General Clauses Act of 1897 referred to, for the obvious reason that it had no application. It could only apply cases of the kind arising after 1897 and under the new Code of Civil Procedure.

(2.) Applying that section now it is also clear that it provides that service shall be deemed to have been effected (in appropriate cases of which this is one) by the posting of the document in a duly prepaid and registered, &c. &c, and that the date of such service shall, unless the contrary be proved, be deemed to be when the registered letter would in due course have been delivered. Thus it lies on the defendant in this case to prove that it was not delivered. I think for all practical purposes that the point is actual delivery, and that the defendant may not take advantage of his own refusal to accept delivery when tendered. That is to say if the summons in a registered cover be tendered to, and refused by, him, he refuses at his own risk. Where he disputes the actual delivery or tender of delivery, it is a mere question of fact, and the onus is on him. I am therefore only to consider here whether, in fact the registered cover despatched on the 21st November was actually, and in fact, tendered to the defendant Anvarkhan on the 3rd December.

(3.) If it was not, then there was no delivery and no service if it was, then there was effected service within the meaning of Section 27 of the General Clauses Act.