4a. wp 3598-11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3598 OF 2011 Neville Pesi Tata .. Petitioner Vs Ajitbhai Nagindas Thanawala .. Respondent Mr. Subodh S. Sawant for the Petitioner Mr. S.N. Shah for the Respondent CORAM : D.G. KARNIK, J. DATE : 15th JUNE, 2011. P.C.: 1. Heard. 2. The petitioner is the original defendant and the respondent is the original plaintiff. Respondent filed a suit bearing Summary Suit No. 1354 of 2009 against the petitioner in the City Civil Court, Bombay for recovery of sum of Rs. 50000/- on a cheque issued by the petitioner. Suit summons was sent to the petitioner by the Registrar of the City Civil Court by registered post A.D. and was returned “unclaimed’. Thereupon, the Court proceeded exparte and passed a decree. The petitioner, thereafter, took out Notice of Motion No. 1479 of 2010 for setting aside the exparte decree. The present petition is filed against the order of the City Civil Court dismissing the Notice of 1 4a. wp 3598-11.doc Motion. 3. Learned counsel for the petitioner submitted that the summons was not duly served inasmuch as the service by registered post A.D. was not proper and to the Rule 55A of the Bombay City Civil Courts Rules, 1948. Learned counsel for the petitioner submitted that under Rule 55A, the process of the Court can be served by the Registrar by registered post A.D. only in respect of the persons residing beyond the limits of Mahin and Sion. Since the petitioner was residing within the limits of island city of Mumbai, the summons could not have been served by the Registrar under Rule 55A but was required to be served under Rule 217 of the Bombay City Civil Courts Rules, 1948. Rule 217 says that the Sheriff shall ordinarily execute the process of the Court within the local limits of the jurisdiction of the Court and shall not be compelled to execute process beyond the said limits. Rule 217 only creates a bar on the power of the Court in requiring the Sheriff to serve the summons beyond the local limits of the jurisdiction of the Court. Rule 217 cannot be construed to mean that where the defendant resides within the limits of island city of Mumbai, the Court in every case must serve the summons on the defendant only through the Sheriff. Rule 55A permits the Court to serve the summons through its Registrar by registered post A.D. It is true that Rule 55A says that the Court may serve the summons by registered post A.D. 2 4a. wp 3598-11.doc where the defendant resides beyond the limits of Mahim and Sion. But at the most, service by registered post by the Registrar on the defendant residing within the limits of City of Mumbai would be irregular and not illegal. Second proviso to Order IX, Rule 13 of the Code of Civil Procedure specifically says that the Court shall not set aside a decree passed exparte merely on the ground that there has been irregularity in service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. When the summons is served by registered post is returned, there is not only a presumption of service i.e receipt of the letter but also a presumption as to the knowledge of the contents. The petitioner, therefore, must be presumed to have had knowledge that the suit was filed against him and the returnable date. Therefore, the peteitioner had sufficient opportunity to defend the proceedings. There is no merit in the Writ Petition and is, hereby, rejected summarily. [ D.G. KARNIK, J ] 3 4a. wp 3598-11.doc 4