Case: Indu Bhushan Vs. Munnu Lal

Respondent No.1-Munna Lal instituted a suit for specific performance of the contract dated 6th March, 1992. The agreement was allegedly executed by Smt. Krishna Devi, mother of the appellant and respondent no.2 who were the appellants before the High Court. The said Smt. Krishna Devi expired during the pendency of the suit before the Trial Court. According to the plaintiff, out of the total sale consideration of Rupees one lakh, Rs.25,000/- was given on 2nd March, 1992 and another sum of Rs.15,000/- was given on 6th March, 1992. It was stipulated in the agreement that the sale deed shall be executed by the Vendor after she obtained permission from the authorities under the Urban Land Ceiling Act, 1976 (in short ULC Act). As Vendor failed to execute the sale deed the suit for specific performance was filed. The suit was dismissed by the Trial Court on 3rd August, 2002. The judgment and decree were challenged by respondent no.1 by filing Civil Appeal no.109/2002. The said appeal was allowed as ex-parte on 11th July, 2003 by the First Appellate Court. An application was filed by the present appellant and the respondent no.2 to set aside the ex-parte decree passed by the Courts below. The said application was filed in terms of Order XLI Rule 21 CPC which was rejected by the First Appellate CourtThe only ground which was urged in support of the appeal/application as the case may be before the First Appellate Court and the High Court was that there was no service of notice through process server or by registered post. It was contended that the information regarding decision of the appeal came to knowledge of the appellant before the High Court on 28th July, 2003 when the notice of caveat application filed before the High Court by respondent no.1 was received. It was averred that the reports of the process server were not correct. The notice by registered post was not served. In fact, there was no refusal as was made out by the plaintiff-respondent no.1. The postman who was examined clearly stated that there was no refusal by the appellant and the present respondent no.2The First Appellate Court analysed the factual position and placing reliance on the decision of this Court in State of M.P. v. Hiralal and Ors. (1996 (7) SCC 523 ), held that there was valid service of the notice sent by registered post. Further the evidence of the process server clearly established that notice has been served. The High Court dismissed the appeal finding that there was valid service of the notice regarding hearing of the appeal before First Appellate Court.

Reasoning: 10. In the instant case, the postal endorsement is not to the effect that the addressee has refused to accept the letter tendered. Similarly, in M/s Madan and Company v. Wazir Jaivir Chandra (AIR 1989 SC 630 ) the effect of endorsements such as not found, not in station or addressee has left was considered. The service of notice of appeal is required to be done under Order XLI Rule 14 CPC11. A bare perusal of Order V Rule 9 clearly shows that service through process of Court is mandatory. This position is clear from the use of the word may in the provision. In the instant case not one but several process servers have given notice relating to service and their endorsements were sufficient to show service of the notice relating to the appeal. Though it was contended by learned counsel for the appellant that the reports were not correct, the same is not acceptable. No material was placed before the Trial Court or the High Court to show that the endorsements made by the process servers were false or erroneous. Above being the position, the conclusions arrived at by the First Appellate Court as affirmed by the High Court do not suffer from any infirmity to warrant interference