N HARIHARAN Vs. KERALA STATE
HIGH COURT OF KERALA
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(1.) The civil revision petition arises out of an application by the petitioner (the defendant) for setting aside an ex parte decree under O.9 R.13 of the Code of Civil Procedure. Both the lower courts have dismissed the application.
(2.) The first complaint of the counsel of the petitioner is that the lower courts erred in holding that there was due service of summons. The first ground is that the petitioner's name is N. Hariharan, whereas it was shown in the summons sent by registered post as H. Hariharan; and his address was given as Pankajam Motors Ltd., Alwaye instead of the correct address, Pankajam Talkies. Alwaye. The summons was returned with the endorsement by the postman that there was no such institution as Pankajam Motors Ltd. in Alwaye and that there was no such person as H. Hariharan. Thereafter, the summons was published in the 'Express', a Malayalam daily, having circulation in the locality, after which the ex parte decree was passed. The petitioner is examined as pw. 1; and he says that if letters were addressed to him as N. Hariharan, Pankajam Motors Ltd., they should reach him. This shows that there was nothing wrong in the address, which again is fortified by Ex. D-1, a postal acknowledgment for a registered letter sent by the Executive Engineer, Electrical Distribution Division, Alwaye addressed to the petitioner as N. Hariharan, Pankajam Motors Alwaye. Ex. D-1 shows that the petitioner received the registered letter; and he has stated in his evidence that the signature therein appears to be his. The further question is whether the wrong name given on the envelope in which the summons was sent as H. Hariharan instead of N. Hariharan was sufficient to hold that there was no due service. The two letters, N and H, resemble each other so closely that if an envelope was addressed to a person as H. Hariharan instead of N. Hariharan and if the same was taken to him, it should have been received by the addressee. Therefore, for this reason it cannot be said that the service was not due service.
(3.) The next complaint on this aspect of the case relates to the effect of the endorsement of the postman. I may straightaway observe that the endorsement of the postman was not that the addressee refused to receive the envelope, whereas the endorsement was that there was no such institution as Pankajam Motors and no person as H. Hariharan. I may however add that if this return is to be treated as one of refusal, then R.20A(2) of Or. V of our Code of Civil Procedure must apply; and the court has to presume that there was prima facie proof of service. At any rate, matters did not stop with the first summons in this case, because substituted service was also effected by publication in the 'Express'. R.20(2) of Or. V says that such substituted service shall have the same effect as personal service. On this basis, since there was substituted service also, it has to be held that the service of summons was proper.;
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