- Bookmark
- Share
- CaseIQ
Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani
Factual and Procedural Background
The opponent filed a Summary Suit on April 22, 1964, in the Court of Small Causes against the petitioner, alleging that Rs. 3,000 was due under a receipt dated May 1, 1961. The writ of summons was sent to the petitioner by registered post but was returned unserved with the postal endorsement "refused." The petitioner did not appear at the hearing, resulting in an ex-parte decree against him. The petitioner subsequently applied to the Small Causes Court to set aside the ex-parte decree, claiming on oath that the summons was never tendered to him. The learned Judge refused to set aside the decree, relying on statutory presumptions regarding service by post. The petitioner then filed a revision application before this Court, which admitted the application and ordered a deposit of Rs. 1,700 as a condition for stay of execution. The Court ultimately allowed the revision application and set aside the ex-parte decree on terms.
Legal Issues Presented
- Whether the presumption of service raised by sending a letter through registered post under Section 114 of the Indian Evidence Act and Section 27 of the Indian General Clauses Act is rebuttable by the defendant's sworn statement that the letter was not tendered to him.
- Whether an ex-parte decree passed after service by registered post, when the summons is returned "refused," can be set aside on the defendant's uncontradicted oath denying receipt of the summons.
- The proper application of Order V, Rule 21A of the Code of Civil Procedure regarding substituted service and the conditions under which service by registered post can be deemed effective.
- The conditions under which the Court may set aside an ex-parte decree, including any terms related to deposit of money as per Order IX, Rule 13 of the Code of Civil Procedure.
Arguments of the Parties
Petitioner's Arguments
- The registered letter containing the writ of summons was never tendered to him, as stated on oath.
- The presumption of service by posting the letter is rebuttable by his sworn denial of receipt.
- Reference to the judgment in Appabhai Motibhai v. Laxmichand to support that service by registered post is a special facility and must not defeat the ends of justice.
- The ex-parte decree should be set aside since the postal endorsement "refused" does not conclusively prove delivery.
- The deposit of Rs. 1,700 in Court was made as a condition precedent to stay execution, and this amount should remain deposited until final disposal of the suit.
Opponent's Arguments
The opinion does not contain a detailed account of the opponent's legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Appabhai Motibhai v. Laxmichand, 1953 55 Bom. L.R 916 | Order V, Rule 21A of the Code of Civil Procedure regarding substituted service and the limits of service by registered post. | The Court relied on this precedent to hold that service by registered post raises only a rebuttable presumption and that an ex-parte decree passed on the basis of a postal endorsement "refused" can be set aside if the defendant's sworn denial remains uncontroverted. |
Court's Reasoning and Analysis
The Court analyzed the legal effect of sending the summons by registered post, noting that it creates only a rebuttable presumption of service under Section 114 of the Indian Evidence Act and Section 27 of the Indian General Clauses Act. The Court emphasized that when a defendant makes an uncontradicted statement on oath denying receipt of the summons, this presumption is rebutted. The Court referred to the precedent of Appabhai Motibhai v. Laxmichand to clarify that service by registered post is a special facility and not a substitute for personal service unless properly circumscribed. The Court found that since the plaintiff did not summon the postman to contradict the defendant's sworn statement, the ex-parte decree was improperly granted. The Court therefore exercised its discretion under Order IX, Rule 13 of the Code of Civil Procedure to set aside the ex-parte decree on the condition that the petitioner’s deposit of Rs. 1,700 remain in Court until final disposal of the suit. The Court concluded that the petitioner's revision application was justified and allowed it, making no order as to costs.
Holding and Implications
The Court's final decision is as follows:
The revision application is allowed and the ex-parte decree is set aside on the condition that the sum of Rs. 1,700 deposited by the petitioner remains in Court until the suit is finally disposed of.
This decision directly affects the parties by restoring the petitioner’s opportunity to defend the suit on merits. No new precedent was established beyond the application and reaffirmation of existing principles on service by registered post and setting aside ex-parte decrees.
Nain, J.:— The opponent filed on April 22, 1964, a Summary Suit in the Court of Small Causes against the petitioner, being Suit No. 992/3041 of 1964, alleging that the amount of Rs. 3,000 was due to the opponent under a receipt dated May 1, 1961, alleged to have been executed by the petitioner in favour of the opponent. The writ of summons of the suit was sent to the petitioner by registered post, but the cover containing the same was returned unserved through the postal endorsement “refused”. As the petitioner remained absent at the hearing of the suit, an ex-parte decree was passed against him.
2. The petitioner made an application to the Small Causes Court for setting aside the ex-parte decree. In his application which was on oath, he stated that the registered letter containing the writ of summons was not tendered to him at any time. The learned Judge, however, refused to set aside the ex-parte decree, inter alia, on the ground that under s. 114 of the Indian Evidence Act and s. 27 of the Indian General Clauses Act the posting of a letter in due course raises a presumption about effective service.
3. I am afraid, the learned Judge has lost sight of the fact that sending of a letter by registered post merely raises a rebuttable presumption that the letter was delivered to the addressee. In a case where the addressee makes a statement on oath that such a letter was not tendered to him, the presumption stands rebutted. Mr. Gandhi has drawn my attention to the judgment of Mr. Chagla, the then Chief Justice of Bombay, in the case of Appabhai Motibhai v. Laxmichand . 1953 55 Bom. L.R 916., in which it has been held that O. V, r. 21A, of the Code of Civil Procedure provides for substituted service. Ordinarily, service must be effected personally upon a defendant. Service by a registered post is a special facility to the Court in these modern days to effect service by registered post. But even so that convenience must be properly circumscribed so as not to defeat the ends of justice and it would be a very serious thing if a defendant was not entitled to have an ex-parte decree set aside although that decree was passed on an endorsement made by a postman that the packet had been offered to the defendant and he had refused it. The learned Chief Justice held that, in his opinion, when the defendant came and stated that the registered letter containing a summons was not tendered to him, the Courts below were wrong in refusing to set aside the ex-parte decree on the application made by the defendant. With the above judgment, I respectfully agree. Where an ex-parte decree is passed after the writ of summons has been sent to a defendant by registered post and the cover containing the summons has been returned with the postal endorsement “refused”, it is undoubtedly for the defendant to satisfy the Court that the letter was not tendered to him. But the defendant can only do so by making a statement on oath. This must usually remain uncontroverted, unless the postman, who tendered the letter to him, is summoned and makes a statement that he tendered the cover containing the summons to the defendant and after cross-examination, his evidence is believed. In this case, the plaintiff did not summon the postman. The statement on oath of the defendant remained uncontroverted and, in my opinion, there was sufficient ground for setting aside the ex-parte decree and, accordingly, I make an order setting aside the ex-parte decree.
4. After this revision application was admitted by this Court and the petitioner made an application for stay of execution, as a condition precedent to the grant of stay, he was ordered to deposit a sum of Rs. 1,700.
5. Mr. Gandhi for the petitioner states that this sum of Rs. 1,700 has been deposited in the ‘Court of Small Causes. Under O. IX, r. 13, of the Code of Civil Procedure, the Court may make an order setting aside the decree upon such terms as to payment to the Court or otherwise as it thinks fit. I make an order that the sum of Rs. 1,700 deposited by the petitioner shall remain in Court as a term on which the ex-parte decree is set aside. The said amount shall remain deposited until the disposal of the suit and then abide by the orders of the Court at the time of the disposal of the suit.
6. I, therefore, allow this revision application, but make no order as to costs. The rule is made absolute
7. Application allowed.
Alert