JUDGMENT
Binod Kumar Roy, J.
1. Since in these two appeals, which have been placed for hearing one after another and they have been heard together parties are same and as many questions of facts and law are common the are being disposed of by this common judgment.
2. These appeals have been filed against orders rejecting petition file, by the appellants under Order IX Rule 13 of the Code of Civil Procedure (hereinater to be referred to as ‘the Code’) for setting aside the ex parte decrees of the same Court in Title Suit No. 104 of 1982, Money Suit No. 11 of 1982, respectively.
3. Relevant facts of M.A. No. 228 of 1986.
Title Suit No. 104 of 1982 was filed by the respondent for grant of a money decree for Rs. 1,81,338.30, paise along with interest pendente lite along with other incidental reliefs. The plaint was admitted by an order dated 4.12.1983 and the respondent was directed to deposit the summons mosannas and registered covers along with Talbana etc. which was complied after several opportunities. On 12.12.1983 it appears that the plaintiff also deposited the draft of the Gazette publication and the subordinate judge sent he same for its necessary publication. By an order dated 13.1.1984 it appears that the Subordinate Judge received the cutting of the publication but without recording any express finding about the publication of the notice in any of his order, fixed the suit for an ex pane hearing and thereafter the suit was finally heard ex parte on 16.7.1984 and on 19.7.1984 an order was passed decreeing the suit. The appellants filed an application dated 7.8.1984 under Order IX, Rule 13 of the Code for setting aside the aforementioned ex parte decree alleging chiefly as follows : (i) The plaintiff has obtained a totally illegal ex parte decree by conducting entire proceeding bala bala about which, they had no knowledge, (ii) They came to know of the ex parte decree through a rumour of 23rd July, 1984 and thereafter getting the recods of the suit inspected on 24.7.1584 learnt that there has been no service of notice on them, (iii). The applicant No. 1, Rabindra Kumar Singh has been residing in the town and district Bikaner (Rajasthan) since 1978 where he does business because of the difference cropped up amongst them about which the plaintiff had full knowledge but this fact has been deliberately concealed. No postman made any tender of the registered covers and the report made on the registered post, was a fraudulent act on Court. (iv) The applicant No. 2, Birendra Kumar Singh has been residing in the town and district Mirzapur since four or five years in connection with business about which also the plaintiff had knowledge from the very beginning and from the report submitted on the registered cover, it was clear that he does not reside at Bidhunagar and that he always resided outside. (v) No publication was made in the Gazette at all and this has been deliberately done by the plaintiff, From the inspection of the records, it appears that summons were pointed in “Nagrik” which is wholly illegal and improper inasmuch as “Nagrik” had no circulation at all nor is it sold it market and that no one knows about such paper either in the Arrah Town or in the Anchal Kodwar. (vi) By the ex parte decree the applicants have been seriously prejudiced more so when from the records of the Bank it would appear that the plaintiff was not entitled to any relief. This application was registered as Misc. Case No. 23 of 1984 and notice was issued to the respondent who filed a rejoinder, dated 16.3.1985 denying the allegations and asserting further that the summons with copies of the plaint were sent under registered posts with covers besides they were also served by the court peon and an additional precaution was taken by publication in the local ‘Nagrik paper’ in which notices of the courts are generally published which has got circulation, that the applicants had knowledge of the suit through summons as also the publication in the aforementioned newspaper; that Rabindra Kumar Singh, one of the partners of the firm does not live in Bikaner permanently: and that partners are full brothers who are still joint and they have joint liabilities. The applicants in support of their case examined Raghubir Prasad, a clerk as their witness No. 1 who had stated in his evidence that the applicant, Rabindra Kumar Singh does not reside at Koilwar rather at Bikaner in connection with his business; one Jai Narain Singh, A.W. 2 a clerk who had stated in his evidence that he knows the applicant Birendra Kumar Singh who has been residing at Mirzapur in connection with his business since 5/6 years and that he had never seen him during that period either at village Bagura or at Bidhunagar. One Surendra Singh as A.W. 3, a cultivator of a village within the Police Station Koilwar who had stated that he had never seen either sale or reading of Nagrik by any one. The applicant Nos. 2 and 3 also examined themselves as A.W. Nos. 4 and 5, respectively and tried to support their case. One Vinod Roy was also examined by them who stated that he works as Chaukidar in the factory of the there brothers at Bidhunagar and that their youngest brother Dhirendra Kumar Singh by remaining in his village Bagura does cultivation work. The respondent examined a clerk, Ram Chandra Prasad, as O.P.W. 1 who has stated in his evidence that he has been doing his work since 25-26 years and that the notices in connection with the litigations are being published in a paper “Chhatra”. One Lalan Prasad, Cashier of Bagar Branch of the Bank was examined as O.P.W. 2. The Dak Peon, Parmeshwar Prasad Singh was examined as O.P.W. 3 and a diesel mechanic Bijendra Kumar Singh was examined as O.P.W. 4 O.P.W. 2 had stated prior to his appointment he was working as peon as well as Binder (Daphtan) in the Koilwer Branch of the Punjab National Bank. O.P.W. 3 has stated that he has been working as postal peon of Karkara Post Office which is Branch Post Office of Koilwar. He has also stated that his nephew Bijendra Kumar Singh had gone to serve registered envelopes on 19.5.1983 and that endorsement on the envelopes are in his writings which were marked as Exhibits A and A/3. He explained that since he had gone on leave he had not taken the registered envelopes but as per the rule of his department it a postal peon goes on leave he must keep one man in his place and on the basis of that rule his nephew Bijendra Kumar Singh had gone to serve the registered envelopes. O.P.W. 4, the nephew stated that he has taken four registered envelopes which were refused to be accepted by three of them. In his cross-examination he had categorically admitted that he was never appointed as postal peon and that he had not received any Government Order to work in place of his uncle. From the records of Misc. Case No. 23 of 1984, I find that there is a bill, dated 29.11.1983 furnished by Chhatra (Hindi News Weekly) submitted in regard to the publication of notices in regard to eight different suits including the suit in question.
Facts of M.A. No. 244 of 1986.
4. Money Suit No. 11 of 1982 was filed by the respondent against the appellants for granting a money decree for realisation of an amount of Rs. 2,85,441.60 paise along with interest pendente lite as well as future and also for other reliefs. The plaint was admitted on 4.12.1982. Summons and registered covers were filed for issuance of notices and they were also issued. From the order, dated 10.3.1983 it appears that registered cover of defendant No. 2 was received back unserved. From the order dated 2.4.1983, it appears that service of summons was returned along with a report. The plaintiff filed fresh summons as also registered covers both of which were directed to be issued through Nazarat fixing 2.4.1983 as the date of hearing. From the notes in the margin against the order, dated 2.4.1983, it appears that on 8.4.1983 the summons and registered covers were issued but the summon were returned with a note of the Nazarat ‘the time is short’. On 17.4.1983 registered covers were received back with an endorsement “refused to receive”. By an order, dated 22.4.1983 the suit was adjourned to 19.5.1983 after making a note that summons received unserved for want of time and that they be issued fixing 19.5.1983 and that registered cards or A/D not received. By an order, dated 19.5.1983, it appears that the office was directed to re-issue the summons fixing 5th July, 1983 as the next date making a further note that “registered cards or A/D not received”. In the order dated 5.7.1983 it was noted that service report of summons received unserved and that registered cards or A/D not received and the plaintiff was directed to take fresh step of service on defendants through Nazarat. It appears from the order sheet that the records were not put up on 21.7.1983 rather they were put up on 27.7.1983 and that registered covers were received and the plaintiff was directed for taking necessary step for service of summons by 19.8.1983. On 19.8.1983 the plaintiff was against directed to comply with the direction contained in order, dated 27.7.1983. From the order, dated 27.9.1983 it appears that the plaintiff filed an affidavit to support the service of summons and that by an order, dated 5.12.1983 it further appears that the plaintiff deposited a receipt showing deposit of costs for publication and that the plaintiff was directed to submit a draft notice for publication. By an order, dated 5.1.1984, the office was directed to comply with the earlier order. It also appears that a cutting of the publication was received and that no pairvi was done on behalf of the defendants and the suit was called out and after non-appearance of any one on behalf of the defendants it was fixed on 30th March, 1984 for ex pane hearing. It further appears that on 17.7.1984 one Bhagwati Prasad Yadav was examined as P. W. 1 and certain documents were also exhibited and 21.7.1984 was fixed for ex parte order and on that day i.e. 21.7.1984 the suit was decreed ex parte. On 18.8.1984 an application was filed under Order IX, Rule 13 of the Code, on terms similar to the one filed in Ti le Suit No. 104 of 1982 registered as Misc. Case No. 23 of 1984, which WAS registered as Misc. Case No. 26/84. A rejoinder was filed by the Bank reiterating the same facts as stated in its rejoinder in Misc. Case No. 23 of 1984. The appelants also examined applicant No. 3 as A.W. 1, applicant No. 2 as A.W. 2, one Surendra Singh, a cultivator of village Pachaina as A.W. 3 to support their case. The respondent Bank examined Lalan Prasad, Binder (Daftari) of its Branch situate at Arrah Station Road as O.P.W. 1 and Parmeshwar Prasad Singh, Extra Departmental Delivery Agent, Postal Department as O.P.W. 2. From the record, it appears that on 11.2.1983 the registered envelopes were returned after making endorsement that the addressee does not reside here. A.W. 1 stated that he knows Rabindra Kumar Singh, Briendra Kumar Singh and Dhirendra Kumar Singh the last one resides at Babura and Birendra Kumar Singh resides at Mirzapur and that he had never heard the name of the newspaper Nagrik. He had also stated that in Koilwar, newspapers are being sold. When cross-examined, he has stated, inter alia, that he does not know as to which newspapers are published from Arrah. O P. W. 1 has stated in his examination-in-chief that on 19.5.1983 he had gone in the Rabindra Woollen Mills, Vidhunagar for inspection along with the Manager where the brother of the peon had come who was tendering registered notices on the three partners Rabindra Kumar Singh, Birendra Kumar Singh and Dhirendra Kumar Singh which they had refused to accept and that he had filed an affidavit in the suit to support service. In his cross-examination, he has stated that Birendra Kumar Singh is not the postal peon who had gone along with registries. After making these statements, he had added of his own that he was brother of the postal peon. O.P.W. 2, Parmeshwar Prasad Singh has stated in his examination-in-chief that when Extra Departmental Delivery Agents go or leave or when a deputation is made to work at another place they on their risk substitute some other agent. He has further stated in his examination-in-chief that from 11.4.1983 to 23.4.1983 he was working in Koilwar Post Office as Departmental Peon and that in Katkarira, Parmanand Singh was substituted, who had made endorsements on the four registered, covers (marked Exhibits-A, A/1, A/2 and A/3). In his cross-examination, he has stated, inter alia, that he is not the appointing authority of the post office, that Parmanand Singh since two years has gone to Gurjarat, that the Government does not give them leave but when they fall ill or when they want leave they go after making substitutes in their place and that Rabindra Kumar Singh these days resides at Bikaner but he cannot say since when.
5. Misc. Case No. 23 of 1984 was dismissed holding as follows:
(i) It is not established that Nagrik Chhatra Papers are not daily newspapers and any circulation in the area where the firm and the defendants reside.
(ii) Service of summons on the defendants including the firm was effected under Order V, Rule 19(a) of the Code through registered post.
(iii) Under the rules of the Post and Telegraph Department, O.P.W. 4 Bijendra Kumar Singh was a duly authorised substitute of O.P.W. 3, Parmeshwar Prasad Singh.
(iv) Under Rules 3 and 5 of Order XXX of the Code, service on one of the partners will be deemed to be on all ^the partners of the firm.
6. Misc. Case No. 227 of 1984 was dismissed holding as follows:
(i) The endorsements Exhibits A to A/3 shows that petitioners had refused to take delivery of registered covers.
(ii) Under the rules of the Post and Telegraph Department E. D. A. can give his substitute and as such Parmanand Singh was substituted for O.P.W. 2.
(iii) Service of summons on the partner of the firm will be deemed to be service on all partners, (iv) Summons were duly served on the petitioners under Order V, Rule 19(a) of the Code and as such they had knowledge about the suit.
7. Mr. Girija Prasad Singh, learned Counsel for the appellants, submits as follows:
(i) Service through registered cover is only an additional mode and from the record as also from the impugned order, it does not appear that service was validly made on any of the appellants through the ordinary process. On the material on the record, it is clear that the alleged tenders of 4he registered envelopes were admittedly made by a different person who was not proved to have any authority from the Koilwar Post Office to whom the envelopes were sent and that they were also sent through a differen post office named Katrahia.
(ii) In Misc. Case No. 23 of 1984 an order was passed for publishing the notices in Gazette whereas admittedly no notice was printed in the Gazette rather it appears to have been printed in Nagrik another paper. Even as per the pleading of the Bank notices were printed in ‘Nagrik’ but the evidence adduced interestingly shows that it was printed in a paper called Chhatra, which was not proved to be a daily newspaper whereas the law requires publication of notices in a daily newspaper.
8. Mr. Shailesh Kumar Sinha, learned Counsel for the Bank while supporting the impugned orders, submitted that Katrahia is a sub-post office of Koilwar, that under the Rules framed by the Post and Telegraph Department it was permissible for a postal peon to substitute another person to perform his duties, that the endorsements of the refusals were correctly made, and there being a presumption of correctness and regularity of the official act the onus was on the applicants which they had failed to discharge; that service on one of the partners shall be deemed to be valid on the firm as well as other partners ; that true it is that in the order sheet of Misc. Case No. 23 of 1984 there was a direction to publish notices in the Cazette but it was just a loose term for a newspaper and that the publication of the notices in the newspapers whose cuttings are on the record have not been shown to be invalid or improper. Alternatively, he also submits that if I take a view that the ex pane decrees are liable to be set aside in that event I should impose some conditions on the applicants.
9. In order to appreciate the rival submissions of the parties, it will be useful to refer to Order V, Rules 19-A and 20 of the Code which runs as follows:
19-A. Simultaneous issue of summons for service by personal service.–(1) The Court shall in addition to post and simultaneously with the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive) also direct the summons to be served by registered post, acknowledgement due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on or personally works for gain:
Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where in the circumstances of the case, the Court considers it unnecessary.
(2) When an acknowledgement purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons when rendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:
Provided that where the summons was properly addressed prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or misled, or for any other reason, has not been received by the court within thirty days from the date of the issue of the summons.
20. Substituted Service.–(1) Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
10. In Express Cable Private Ltd. v. N.S. Mukherjee and Ors. , a Division Bench of this Court had occasion to consider the provisions of Order V, Rule 19(2) proviso and it was laid down as follows:
4. …The Civil Procedure Code prescribes a procedure that it was only after the summonses and notices have been served on the defendants that the suit will be taken up for filing of the written statement and for settlement of issues and for hearing. It may be mentioned at this place that some of the defendants of the suit had filed written statement, but still service report of notices which were sent by registered post to defendants 3 and 4 had not been received and, therefore, the suit was not ready to be taken up for hearing or even for settlement of issues.
* * * *
5. …Clause (2) of O.V.C.R. 19-A of the Code provides a procedure that after a postal notice is sent to a defendant in the suit and the postal acknowledgement is received with an endorsement purported to have been made by a postal employees that the defendant or his agent refused to take delivery of the notice the Court shall declare by its order that the summons had been duly served on the defendant. The Proviso to Clause (2) further provides that in a case where summons sent by registered post with acknowledgement due the postal acknowledgement is not received back within 30 days from the date of issue of the summons, the Court may make a declaration to the effect that the summons were duly served notwithstanding the fact that the acknowledgement having been lost or misled or for any other reason has not been received by the Court. This is a procedure which is mandatory to be followed in order to have on the record the satisfiaction of that Court that summons have been duly served on all the defendants of the suit because that is a condition precedent for the Court to proceed further with the hearing of the suit. Such declaration was not made by the Court in the present suit and, therefore, the suit could not be said to have been ready for hearing.
* * * * 11. From the order sheets of the suits it does not appear that any finding has been recorded therein that summons were duly served on the defendants. In the aforementioned view of the matter I am of the the view that the order posting the suits for ex pane hearing was apparently not justified. 12. Mr. Sinha, learned Counsel for the Bank, when asked as to on which rule of the Post and Telegraph Department reliance was placed in the Court below refers to Rule 230 of Swamy's Compilation of Posts and Telegraphs Financial Hand Book, Volume I, General. The aforementioned Rule 230 runs as follows: 230. When a Government servant is summoned by a Court of law as a witness in a matter relating to his departmental duties, arrangement may be made to fill up the place of the absentee at a cost not exceeding his minimum pay, provided it is certified in each case that the arrangement was required in the interest of the Department. The certificate should be attached to the pay bill. The absentee will continue to draw his own pay. From the perusal of the aforementioned Rule it is clear that the arrangements have to be made to fill up the place of such Government Servant absentee who is summoned by a court of law as a witness in a matter relating to his departmental duties.
14. It is surprising as to how the aforementioned Rule has been invoked by the Bank and relied upon by the Court below in the impugned orders when nothing has been stated either on behalf of the Bank or by the alleged postal peons examined on its behalf that there was a summons to produce them as witness in a case relating to their departmental duties. In. my view the reliance on the aforementioned Rule was utterly misconceived and I am surprised as to how the Court below has invoked the aforementioned rule for the purposes of negativating the claim of the appellants.
15. Now I proceed to consider another argument of Mr. Sinha namely, that there being presumption of the regularity of the official acts, the onus was on the applicant (apellants herein) to prove that there was non-tender of the registered covers to them.
16. Very recently the Supreme Court in Gujarat Electricity Board and Anr. Appellants v. Atmaram Sungomal Poshini held as follows:
8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no oceasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover.
17. The endorsements having been made by persons having no authority, Rule 230 has been invoked apparently under a great mis-conception of law and fact. In my view no such presumption at all arises in the peculiar facts and circumstances in these cases. In the instant cases, even assuming that tenders were made by the alleged persons, they having failed to show that they had any authority to tender the registered letters their endorsements do not raise that presumption and thus it cannot be held that there was a valid tender in law of the aforementioned registered letters. Thus I am constrained to hold that there was no valid service at all as required under the law, on any of the applicants.
18. I also cannot shut my eyes to a most glaring aspect of the matter. In Misc. Case No. 23 of 1984 the Subordinate Judge had passed orders for publication of the notices in the Gazette whereas they have not been so done rather they have been allowed to be published in some other newspapers. The law as contained in Sub-rule (1-A) of Article 20 of Order V makes it incumbent on the Court to publish the advertisement in a daily newspaper having circulation in the locality in which the defendant was actually and voluntarily residing or carrying on business or personally worked for gain. It has not been established in the instant cases that the newspapers had circulation in the locality of Koilwar Post Office where the defendants were residing and carrying on business. It is interesting to note that the alleged newspaper Chhatra as it appears from the bills submitted in Misc. Case No. 23 of 1984 by that newspaper that it is a weekly newspaper and thus the publication of notice in that newspaper was apparently not in accordance with law. For the reasons; aforementioned, I am of the view that there has been no proper service of notices on the defendants and the suit was incorrectly placed for ex pane hearing and the aforementioned lacunae vitiated the ex pane trials including the decrees. The observations in regard to Nagrik and Chhatra aforementioned should not be taken to apply in regard to other suits as they have been made on the basis of the materials on records in the suit in question alone.
19. Since I have held that there was no valid service on any of the applicants, I am of the view that invoking of Rules 3 and 5 of Order XXX of the Code by the Court below was also not correct.
20. I am also of the view that the judgment of the Allahabad High Court reported in 1989 (1) Banking Commercial Law Reporter 206 referred to by Mr. Sinha is hardly of any significance in these cases.
21. For the reasons aforementioned, I am of the view that the applicants have succeeded in satisfying that summons were not duly served on them and the suits were wrongly called out for their ex pane hearing and justice requires fresh hearing and accordingly, I set aside the impugned orders. The appeals are accordingly allowed with costs. Hearing fee assessed at Rs. 250/- each.
22. Before I part, however, in the interest of justice, I direct the appellants to appear in the court below along with their written statements on 15.1.1990 and on that date the court below shall fix a firm date for filing of lists of documents, along with documents and list of witness by the parties and shall proceed to settle issues and to dispose of the suits preferably within six months in accordance with law adhering strictly to amended Order XVII of the Code which regulates prayers in regard to the unnecessary adjournments.
23. I also direct that if the appellants fail to file their written statements on 15.1.1990 without any sufficient cause, it will be open for the trial court to proceed to hear the suits ex parte.