- (1.) The application filed by the 2nd defendant to set aside the ex parte decree had been allowed by the District Munsif of Pennkonda. As against that order is this revision petition by the plaintiff.
(2.) The suit was filed for recovery of Rs. 2680.00 being the cost of empty tins which the defendants did not return to the plaintiff-firm. A notice to the defendants was ordered to be sent by post. The 2nd defendant himself had been served on 15-2-1954 but he was set ex parte. The 3rd defendant filed a written statement but later on his counsel reported no instructions. The registered notice sent to the 4th defendant was returned with the endorsement that he refused. He was also set ex parte. The 1st defendant was given up. So, a decree was gassed against defendants 2 to 4, and it is this ex parte decree against defendants 2 to 4 that is sought to be set aside.
(3.) The learned District Munsif gave his reason for setting aside the decree as that he considered that there was no service on the 4th defendant. He opined that the mere endorsement of the postman on the registered notice that service was refused is not enough for holding that the service is sufficient. The learned counsel for the plaintiff-petitioner now contends upon Rule 20-A of Order V, C. P. C., that the refusal must be deemed to be proof of services That ride reads as follows : "20-A. (1) Where, for any reason whatsoever, the summons is returned unserved, the court may, either in lieu of or in addition to the manner provided for service of summons in the forgoing rules direct the summons to be served by registered post addressed to the defendant or his agent empowered to accept service at the place where the defendant or his agent ordinarily resides or carries on business or personally works for gain. (2) An acknowledgment purporting to be signed by the defendant or the agent or an endorsement by a postal employee that the defendant or the agent refused to take delivery may be deemed by the Court issuing the summons to be prima facie proof of service." The calling in aid of this rule for service by post is, I should think on a plain reading of its language, conditioned upon the contingency arising "when summons is returned unserved" which clearly indicates that the service of summons in the first instance is not dispensed with altogether. This rule only prescribes the way in which the service of the summons, which was returned unserved, could thereafter be effected. In such a contingency, in lieu of the issue of summons or in addition to the manner provided for service of summons in the other rules of this Order the Court is empowered to direct the summons to be served by registered post. Therefore, Sub-rule (1) cannot be invoked in aid of service of summons by post even in the first instance. It is next to be observed that under Sub-rule (2) an endorsement by a postal employee that the defendant or the agent refused to take delivery is not to be ipso facto treated as proof of service but may be "deemed" by the Court issuing the summons to be prima facie proof of service. Therefore, the volition of the court to treat it as proof of service would alone make this deeming clause operative. Anything short of proof of such an act by the Court deeming this as proof of service cannot be relied upon by the parties for getting the benefit of this sub-rule. So the requirement of Sub-rule (2) namely the treatment of refusal by the Court as proof of service, is to be strictly established.;