Roopchand Rangildas v. Haji Hussein

1. The first question to be answered is, whether R. 107, High Court Rules falls under Cl. 27, General Clauses Act. Reading Sections 129 and 131 of the CPC, together, I think that question must be answered in the affirmative. Noting a judgment of Robertson, J., in Baluram Ramhisan v. Bai-Pannabai (1) I may incidentally remark that in none of the cases commented on by that learned Judge was Cl. 27, General Clauses Act, 1897 referred to, for the obvious reason that it had no application. It could only apply to cases of the kind arising after 1897 and under the new Code of Civil Procedure.

2. Applying that section now it is also clear that it provides that service shall be deemed to have been effected (in appropriate cases, of which this is one) by the posting of the document in a duly prepaid and registered cover, etc. and that the date of such service shall unless the contrary be proved be deemed to be when the registered letter would in due course have been delivered. Thus it lies on the defendant in this case to prove that it was not delivered. I think for all practical purposes that the point is actual delivery and that the defendant may not take advantage of his own refusal to accept delivery when tendered.

3. That is to say if the summons in a registered cover be tendered to, and refused by him, be refuses at his own risk. Where he disputes the actual delivery or tender of delivery, it is a mere question of fact, and the onus is on him. I am, therefore, only to consider here whether in fact the registered cover despatched on 21st November was actually, and in fact, tendered to the defendant Anvarkhan on 3rd December.

4. If it was not, then there was no delivery and no service; if it was then there was effected service within the meaning of Section 27 of the General Clauses Act.

G.P/R.K

5. Order accordingly.