Second proviso to Order 9 Rule 13 casts an embargo on the court that a decree passed ex-parte shall not be set aside merely on the ground that the has been an irregularity in the service of summons.
9. Order 5, proviso to Sub-rule (2) of Rule 19A of C.P.C. provides that where the summons are properly addressed, prepaid and duly sent by registered post with acknowledgement due, notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons, the Court shall presume that notice is duly served. Further,Second 27 of the General Clauses Act, 1897 (in short 'Act) provides similar provision. The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading convincing and cogent evidence.
10. It is nobody's case that the postal addresses of the defendants are not properly addressed and, therefore, the registered summons could not be served. It is also nobody's case that the registered summons are not pre-paid and not duly sent. In fact the registered summons, bearing receipt Nos. 875and 876 dated 24.4.1986, were issued is borne out from the record.
11. Once it is proved the summons were sent by registered post to a correct and given address, the defendants' own conduct becomes important. Before the Trial Court, the appellants were allowed to lead evidence in support of their contentions. An order to this effect was passed by the Trial Court on 11.1.1991. The premises in question is occupied by two defendants jointly - Hari Singh and Basant Singh. Hari Singh appeared and examined himself stating that he did not receive the registered letter. However, the defendant Basant Singh did not appear and no evidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgment due. His own conduct shows that the registered summons had been duly served on him. As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the Statute. This apart, it is inherently improbable that the registered summons were duly served on Basant Singh but not to Hari Singh when they occupied the tenanted premises jointly.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 6489 of 2002
Decided On: 03.10.2002
Basant Singh and Anr. Vs. Roman Catholic Mission
Y.K. Sabharwal and H.K. Sema, JJ.
Citation:(2002) 7 SCC 531,AIR 2002 SC 3557