JUDGMENT
Samir Kumar Mookherjee, J.
1. The present appeal is directed against a judgment and order passed by the learned Assistant District Judge, 2nd Court, Alipore, in Misc. Case No. 55 of 1987, whereby the learned Assistant District Judge, rejected an application under Order 9, Rule 13 of the Code of Civil Procedure preferred by the appellant/judgment debtor. The ex parte decree is one for eviction.
2. So far as the appellant’s case is concerned, it is a case where the first limb for relief under Order 9 Rule 13 of the Code of Civil Procedure has been sought to be invoked. The decree-holder/respondent, however, has pleaded disentitlement of the appellant to the relief claimed on the ground, as pleaded on behalf of the appellant, inter alia, relying upon the finding of the Trial Court about satisfactory service of summons and also on a technical ground of limitation by reference to the second limb of Article 123 of the Limitation Act. It has further been the plea of the decre-holder/respondent that even assuming that there was some irregularity in the service of summons, in view of the second proviso to Order 9 Rule 13 of the Code of Civil Procedure, the said irregularity could not result in setting aside of the ex parte decree in question.
3. Mr. Mitter, appearing in support of the appeal, has laid great emphasis on certain facts which transpire from records and according to him a careful consideration of such facts must inevitably have the effect of destroying the tenability of the finding about satisfactory service of summons in the suit, as made by the learned Trial Judge and affirmed in the impugned order. The said facts, as relied upon by Mr. Mitter, may be narrated as follows :-
(i) The plaintiff’s assertion in the letter dated 12.6.1986 was promptly controverted from the side of the judgment-debtor/appellant by its letter dated 20.6.1986, expressing clearly therein, the firm intention of the judgment debtor/appellant to contest any proceeding, which might instituted by the plaintiff/decree-holder in pursuance of the said letter.
(ii) The summons, served through the Court process Server, was found to be an unsatisfactory service by the Court and the refusal to acknowledge the service in writing as recorded in the report of the said Process Server was not believed by Court.
(iii) The Registered-Post-Notice was sent without an “Acknowledgement Due Card,” which was an indispensable requirement under the provisions of Order 5 Rule 19A of the Code of Civil Procedure ; the absence of such acknowledgement, accompanying the registered summons appears confirmed by absence of attempt on the part of plaintiff to prove such A.D. Card and non-filing of evidence of O.P.W.I., such registered envelope had been despatched not through the office of the Court but by the clerk of the plaintiff/decree-holder’s learned Advocate and that too not from any Post Office in the vicinity of the Trial Court but from G.P.O., which is far away therefrom. The postal peon also was not called as a witness though the tendering of the envelope or the summons had been categorically disputed from the side of the judgment- debtor / appellant.
(iv) In view of non-service of summons the judgment debtor/appellant was entitled to file the application under Order 9 Rule 13 of the Code of Civil Procedure within 30 days from the date of knowledge of the ex parte decree. The plea of the plaintiff/decree holder that even assuming the defendant’s version of such knowledge post prior to the ex parte decree to be accepted, such date of knowledge must be taken to be 16th of February, 1987 is not tenable in view of the vital contradictions between the contents of the report of the Court bailiff and the evidence of the O.P.W. No. 1.
(v) The impugned order embodies findings about date of knowledge of the suit but not about date of knowledge of the decree in the absence of which the finding of the learned Assistant District Judge about the application under Order 9 Rule 13 of the Code of Civil Procedure having become time barred becomes untenable.
4. Mr. Roy Chowdhury, appearing on behalf of the contesting plaintiff/ respondent, placed reliance upon the following admitted factual details :-
(i) The admission, through the averments, made on behalf of the defendant/appellant, to the effect that to the knowledge of the plaintiff they had parted with possession in favour of Digvijoy Artherton Investment Co. (P) Ltd. (hereinafter referred to as the Investment Company) and as such, whatever interest it had as a tenant stood extinct, imparted credibility to the endorsement of refusal as recorded by the postal authorities in the registered envelope containing the summons of the suit. Mere despatch of the envelope through the clerk of the decree-holder’s learned Advocate is not an irregularity as to render the decree illegal and unsustainable in law but stood amply protected by the second proviso to Order 9 Rule 13 of the Code of Civil Procedure as the presumption attached to an endorsement of refusal sufficiently established the satisfaction of the requisites under the said proviso. The subsequent conduct of the judgment-debtor, as discernible from the evidence of O.P.W.1., showed that the application under Order 9 Rule 13 of the Code of Civil Procedure was preferred by the defendant/appellant at the instance of the occupant sub-tenant. In this connection, Mr. Roy Chowdhury also pointed out that admittedly since the induction of the Investment Company into possession of the disputed premises, the rents thereof were being paid by the Company and not by the defendant/judgment-debtor (Vide the deposition of P.W. 1).
(ii) In view of the above materials on record the fact of satisfactory service of summons as recorded by the learned Trial Judge and as affirmed in the impugned judgment and order remains unassailable and justifies the finding of the application under Order 9 Rule 13 of the Code of Civil Procedure having become barred by limitation. The non-production of the postal peon as a witness, merely because of denial of tendering of the summons as made by the defendant/appellant, could not be said to be fatal as to render the finding of the Court invalid.
5. The trend of submissions as noted above for proper adjudication and decision undisputedly calls for interpretation and consideration of the scope of application of three relevant statutory provisions, namely, Order 5 Rule 19A, Order 9 Rule 13 of the Code of Civil Procedure and Article 123 of the Limitation Act.
6. Order 5 Rule 19A provides mandatorily that summons be served in ordinary way as also by registered post with ‘Acknowledgement Due’ unless, in the circumstances, Court considers such service unnecessary and that in case the signed Acknowledgement or the postal article is received back with a postal endorsement of refusal, the Court has to declare that the service had been duly effected on the defendant. The effect of the postal endorsement of refusal had fallen for consideration by the highest Court of the country on several occasions. According to the legal position, as settled by the highest Court, it appears that in case there is a denial of the truth of the tendering of postal article and its refusal by the defendant-addressee, the postman, through whom service was to be effected, as required to be produced as a witness, unless the Court, upon closer examination of the evidence on record, is of the view that the defendant had full knowledge of the notice and had actually refused it knowingly. The evidence on record as mentioned above may include the party’s own admission or conduct. In other words, the production of the postal peon as a witness can be dispensed with only on existence of a very strong and unimpeachable material on record, as, to ask a party, who is alleged to have refused, is to ask him to prove something in the negative, which indeed is a very difficult task (Vide the case of Puwada Venkateswara Rao v. Chidamana Venkataramana ). It has also been held by a Division Bench of this Court that the postal article must be despatched through Court and deviation therefrom by despatch of the article by the party or his representative has been held to be an irregularity due to existence of scope of perpetration of fraud by suppression or otherwise (Vide Parimul Kumar Guhav. Smt. Sovana Sinha reported in 1983(1) CLJ 237). The facts in the instant case closely resemble the facts in the case cited above. Avijit Bose, one of the plaintiffs/decree-holders, who deposed as O.P.W. 1, clearly admitted in his examination-in-Chief that the despatch of the summons through registered post had been done by his Advocate’s clerk and from the postal seals on the registered envelope it appears that the same was posted at G.P.O. confirming unequivocally that it could not have been done by the Alipore Court’s agency (Vide Ext. D-l). The registration receipt, allegedly granted by G.P.O. and marked as Ext. ‘C, in the Misc. case, mentions the value of the postal stamp as Rs. 3.65 though the stamp on the envelope appears to be Rs. 4.15. Significantly the registration receipt does not mention anything about the Acknowledgement Card. Therefore, it is very difficult to rule out that the said registration receipt did not relate to the postal article (Ext. D-l) in question. That this receipt is not the one relating to the registered summons is made clear from the evidence of the said witness, who deposed as P.W. 1 in the Title Suit. In course of evidence in the Misc. Case, however, that registration receipt was sought to be related to the registered summons. The materials, referred to above, cannot, in our view, sustain the truth and correctness of the alleged refusal by the appellant without the examination of the postal peon particularly because of the inherent infirmities as pointed out hereinabove and in the absence of the Acknowledgement Card as an Exhibit. It is necessary, at this stage, to deal with a submission of Mr. Roy Chowdhury, on the basis of the language in in the second proviso to Order 9 Rule 13 of the Code of Civil Procedure, which lays down that no Court shall set aside an ex parte decree merely on the ground that there has been an irregularity in the service of summons. The irregularity as meant by the said proviso cannot mean all or any type of irregularity the mischief of which is avoided by the Court’s satisfaction that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. In the instant case, the qualifying condition does not appear to have been fulfilled. Therefore, even on application of the principle laid down by the Supreme Court in the case (supra), we are unable to hold that the findings of Court below were not based upon misregarding of the Exhibit and vitiated by the wrong impression that the postal article (Ext. ‘D’) had been sent through Court under registered post and returned with the postal remark “Refused” established proper service of summons on: the defendant particularly because there was no enmity between the defendant and the postal peon.
7. Before we part with this point, we would like also to express that Mr. Roy Chowdhury’s contention based upon the Supreme Court’s dictum that a refusal, if otherwise established from materials on record, need not be proved by examination of the postal peon, cannot be said to have much force simply because the defendants admitted in their application under Order 9 Rule 13 of the Code of Civil Procedure that it had surrendered its right and interest in respect of the premises in favour of their sister undertaking Dig Vijoy Atherton Investment and Finance Company Private Limited and ceased to be a tenant, the latter having become a monthly tenant under the plaintiffs/opposite parties. The statement should not be considered in isolation of other statements in the said application, which also in no uncertain term, embodied the appellant’s assertion that the said Investment Company was a sub-tenant and in case it had knowledge of the suit it would have certainly contested the same ; in the mean time, it can be said without hesitation that the averments in the said application of the appellant could not firmly establish complete abdication, on its part, of all its rights and defence as a tenant when the suit impleaded only it as a defendant and there were claims of arrear of rents and other charges as also damanges and mesne profit.
8. So far as Article 123 of the Limitation Act is concerned, in view of the findings made above, the appellant’s case squarely falls within the second limb of the said Article and the period of limitation for application under Order 9 Rule 13 of the Code of Civil Procedure in this case would start from the date of knowledge of the decree. The truth of the events subsequent in the passing of the decree and relating to the process of execution has been considerably shaken by the contradictions in the evidence, both oral and documentary, as has been emphasised by Mr. Mitra. The findings, made by the learned Judge, stand vitiated by non-consideration of such contradictions with the result that the learned Judge’s finding that the appellant came to know about the suit, apart from not having satisfied the “requirement of knowledge of the decree’ in terms of Article 123 of the Limitation Act, becomes unsustainable in law.
9. In the result, the appeal succeeds and is allowed. The impugned order is set aside. The application under Order 9 Rule 13 of the Code of Civil Procedure, preferred by the appellant, is allowed and the ex parte decree is set aside. The suit would now proceed, according to law and fresh evidence. The appellant undertakes to answer in the suit within 10 days. The Court below will proceed after giving the appellant opportunity to file written statement.
There will be no order as to costs.
As prayed for, the appellant is granted liberty to move the executing Court for appropriate orders in view of the judgment and order passed by us today. The hearing of the suit before the Trial Court, however, would be expedite as far as practicable. The records along with this order may go down to the Court below forthwith.
The parties are granted liberty to apply for xeroxed certified copies of the present judgment and in case, such applications are made, the Department is directed to deliver the same within ten days from the date of deposits of the request stamps and folios.
S.N. Chakrabarty, J.
I agree.