Case: VISHWABANDHU Vs. SRI KRISHNA AND ANR

is totally false, frivolous and baseless. That no evidence is produced to deny the report of the process server dated 04.04.2000 in which he stated that on 02.04.2000 the summons was duly served on applicant, nor the said report is to be manipulated. 11. Respondent No.1, being aggrieved, filed FAFO No. 2473 of 2005 in the High Court challenging the order dated 05.07.2005. During the pendency of said FAFO, sale certificate was issued in favour of the Appellant on 30.03.2006 by virtue of order dated 10.01.2006 passed by the concerned court in Execution No.4 of 1998. 12. On 21.04.2006 FAFO No. 2473 of 2005 was allowed by the High Court with following observations:- In the instant case, the appellant appears not to be vigilant as he ought to have been, yet the conduct does not on the whole warrant to castigate him as an irresponsible litigant. Further, the inconvenience caused to the plaintiff respondent on account of the absence of appellant may be compensated by warding appropriate cost. In the interest of justice and under the peculiar circumstances of the case, I set aside the impugned judgment and decree. In the result of this appeal is allowed with the costs of Rs.1000/-. The trial court is directed to decide the case on merits after affording opportunities to the parties. 13. Thereafter, Respondent No.2 filed CMRA No. 107616 of 2009 seeking recall inter alia on the ground that Respondent No.1 had full knowledge of the proceedings since 17.02.1997 and had intentionally and deliberately avoided to appear and contest the matter. The application was, however, dismissed by the High Court by its order dated 18.10.2019 observing that after the order dated 21.04.2006 passed by the High Court, the Suit was restored to the file and the issues were already framed. 14. These two orders dated 21.04.2006 and 18.10.2019 are presently under challenge. 15. While issuing notice in the instant appeals, by Order dated 20.02.2020 passed by this Court, further proceedings were stayed. 16. We heard Mr. Gopal Sankaranarayanan, learned Senior Advocate for the appellant and Mr. Pradeep Kumar Yadav, learned Advocate for Respondent No.1. 17. It was submitted by Mr. Sankaranarayanan, learned Senior Advocate that Respondent No.1 was always aware of the proceedings and had deliberately avoided to appear and contest the matter; that his stand in the application under Order IX Rule 13 of the Code itself indicated that he was ready to execute sale deed in favour of the original plaintiff and that he had no money to repay the amount received by him way of part consideration. It was submitted that as an auction purchaser the Appellant had complied with all the legal requirements and sale certificate was also issued in his favour. 18. On the other hand, Mr. Pradeep Kumar Yadav, learned Advocate submitted that the orders passed by the High Court did not call for any interference and that the Suit having been restored to the file, the matter be allowed to be taken to the logical conclusion. 19. The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The order dated 19.02.1997 was thus completely in conformity with the legal requirements. In a slightly different context, while considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr AIR 2007 SC (Supp) 1705 made following observations:- 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh AIR 1992 SC 1604 : State of M.P. vs. Hiralal & Ors. (1996) 7 SCC 523 and V. Raja Kumari vs. P. Subbarama Naidu & Anr. (2004) 8 SCC 774 ]. … …. 20. Even after the passing of the ex-parte decree, the report filed by the process server on 04.04.2000 clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice. Despite such knowledge, Respondent No.1 allowed the property to be put to auction in the month of December, 2000. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1. 21. In the light of the features indicated above and the fact that the auction was allowed to be undertaken, Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The order dated 19.02.1997 was thus completely in conformity with the legal requirements. In a slightly different context, while considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr AIR 2007 SC (Supp) 1705 made following observations:-14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh AIR 1992 SC 1604  : State of M.P. vs. Hiralal & Ors. (1996) 7 SCC 523  and V. Raja Kumari vs. P. Subbarama Naidu & Anr. (2004) 8 SCC 774  ]. … ….20. Even after the passing of the ex-parte decree, the report filed by the process server on 04.04.2000 clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice. Despite such knowledge, Respondent No.1 allowed the property to be put to auction in the month of December, 2000. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1.21. In the light of the features indicated above and the fact that the auction was allowed to be undertaken, Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant.