TMI Blog2007 (8) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts and circumstances of the case, otherwise the applicants/respondents shall suffer irreparable loss and injury. 2. In the affidavit filed in support of the aforesaid applications it is averred that the writ petition was filed by the petitioner challenging the order dated 27.10.2005 passed in S.C.C. Revision No. 21 of 2004; that it appears from the order sheet that Court by order dated 2.2.2006 had issued notices which were in fact issued on 10.2.2006 by R.P.A.D. fixing 20.3.2006 but in fact no notice has been served on the applicant-respondents at any point of time; that it further appears that undelivered cover had been returned back and that on 14.9.2006 granting time to the petitioner to take fresh steps for service of notice upon respondent Nos. 1 and 5; that on 9.10.2006, notices were issued to respondent Nos. 1 to 5 by R.P.A.D fixing 13.11.2006. The office vide report dated 10.11.2006 reported that undelivered covers in respect of respondent Nos. 2, 3 and 4 had returned back with remark of the post office . 3. As regards opposite-party Nos. 1 and 5, the office reported that neither acknowledgment nor undelivered covers have been received back after service as y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below: Chapter VIII, Rule 12 Service of notice by post or publication: Any notice may in lieu of or in addition to any other mode of service provided by law or by these rules be served if so ordered by sending it by registered post addressed to the person upon whom it is to be served or by publishing it in a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain: Provided that where an order for publication of notice has been passed by the Court or by the Registrar, as the case may be, the party on whose behalf the notice is to be published shall, within seven days from the date of the order, obtain the tentative date from the office on the prescribed form of the notice duly filed in by the party or his Counsel and shall get it published before the date fixed in a daily newspaper circulating in the locality in which the respondent or the opposite-party, as the case may be, is last known to have actually and voluntarily resided, carried on business or personally worked for gain: Provided further that the party or his Counsel getting the notice publish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e summons would deemed to have been served. 11. It is urged that in so far as the position of the present case is concerned it is neither a case of the refusal of service of summons by the respondents nor of return back of the acknowledgment due within 30 days. It is stated that it is rather a case where there is a specific endorsement of the postal employee of non-delivery of summons, as such, the service cannot be deemed to be sufficient on the respondents. 12. He further urged that the provisions of Order V, Rule 17 of the Code of Civil Procedure provides that in case where the defendant or his agent refused to sign acknowledgment or, where the serving officer, after using all due and reasonable diligence cannot find that defendant, he shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides, but there is no endorsement of the postal employee that he had affixed a copy of summons on the outer door or some other conspicuous part of the house. 13. He then went on to say that it appears that provisions of Order V, Rule 17 is not attracted where the summons have been sent by registered post wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order sheet which do not reflect the correct state of facts. In order to appreciate the arguments of the Counsel it is necessary that complete order sheet be reproduced referred. It is as under: 19. It is noticed from the office report dated 13.9.2006 that notices were issued to respondent Nos. 1 to 5 and undelivered covers were returned back with the post office remarks Baad Samay Ke Vapas . This remark of the post office shows that the registered notice with acknowledgment due were sent but as they were not claimed, they were kept for sometime by the postman for being claimed by the respondents and after expiry of the period and were returned with the aforesaid remark. 20. In the aforesaid circumstances, it appears that His lordship Sanjay Misra, J., as abundant caution again granted two weeks' time to the petitioner for taking fresh steps for service of notice on respondent Nos. 1 to 5 to ensure service upon them, though it was not required in view of the undelivered notices returned with remark of the post office Baad Samay Re Vapas . 21. Notices were again issued on 9.10.2006 fixing 13.11.2006 on which the office reported that neither undelivered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date the Trial Court ordered issuance of fresh summons by ordinary as well as registered post within three days and also ordered substituted service under Order V, Rule 20 by publication of summons in a local daily called Dainik Bhaskar. As it happened the summons were published in another local daily known as Aacharan; a copy was produced on 5.8.1986. On 22.8.1986 the Trial Court ordered that proceedings be carried out ex parte. After examination of the respondent-plaintiff's witness on 5.9.1986, ex parte judgment and decree were passed on 30.9.1986. The appellants applied for setting aside of ex parte decree on 6.10.1986. Their application was rejected by the Trial Court as was their appeal by the Appellate Court. Their revision petition was dismissed by the High Court. 27. The appellant never contested at any stage that the summons were improperly addressed and therefore could not be served or that they were not pre-paid or that they were not duly sent. Of the two appellants, one appeared as a witness, but merely made the statement that he had not received the summons; the other did not appear at all. Dismissing the appeal and confirming the ex parte decree against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce has reported to service upon respondent Nos. 2, 3 and 4 on one hand and respondent Nos. 1 and 5 on the other by office report dated 10.11.2006. 29. It further appears from record that by order dated 13.12.2006 the Court had observed that service of notice has already been deemed sufficient and as no counter-affidavit has been filed, the case was directed to be listed in the next cause list for admission/hearing, thereafter, the petition was finally heard and allowed vide order dated 20.12.2006 to which, recall application has been filed. 30. Reliance placed by the learned Counsel for the petitioner on Chapter VIII, Rule 12 and Chapter XII, Rule 10 of the High Court Rules, 1952, is also misconceived. Since Counsel for the petitioner after drawing attention of the Court to Chapter VIII, Rule 12 had himself stated that it is not attracted, in view of explanation II to the aforesaid rule, this Court need not delve upon this point. As admittedly, Explanation II provides that notice sent by registered post shall unless it is received back from the post office undelivered, it shall be deemed to have been served. As regards Rule 10 of Chapter XII of the Allahabad High Court Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the Counsel for the petitioner after taking the Court through the provision stated that in view of Explanation II to Rule 12, the provision would not apply. 35. In view of Explanation II of the Chapter VIII, Rule 2 of the High Court Rules that notice sent by the registered post shall unless received back undelivered, will be deemed to have been served at the time on which it would be delivered in the ordinary course of post, the respondents shall be deemed to have been served. 36. In the instant case notice have been returned back with the remarks of the post office which clearly shows that the petitioner new about the notices and had not claimed it and were deliberately avoided the services. Chapter X, Rule 12 is therefore not applicable in the facts and circumstances of this case for this reason also. 37. It is not in dispute that the registered notices were sent to the correct addresses. When the notices were sent to them for the first time on 13.9.2006, the respondents did not claim the notices sent by the registered post A.D. and after expiry of the period, they were returned back with remarks Baad Samay Ke Vapas and placed on record of the case. 38. After dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under section 114 of the Evidence Act, 1872 operates apart from the Provisions of Post Office Act, 1898 as has been held in the case of P.K. Thomas (supra) by the Apex Court. 42. The argument of the learned Counsel for the petitioner in respect of to Order V, Rule 9 read with Rule 17 of the C.P.C. is concerned the position regarding the substituted services under Order V, Rule 20(1) is the same i.e. if the addressee is not available at the correct address which is the case in the instant writ petition, and he informs the persons living in the house about the delivery letter could be collected, sufficient compliance of service is made, unless the petitioner proves to the satisfaction of the Court that the address on the letter was incorrect and it was never served upon him. Once notice by registered post is sent at the correct address and acknowledgment due has not been returned back to the Court within 30 days from the date of summons, it would, therefore, deemed to have been served and presumption of service in law can be made. It may also be reiterated here that the Counsel for the respondents expressed that Order V, Rule 17 would in the circumstances not be applicable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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