MAHENDRA BHUSHAN, J. - (1.) THIS is defendant's Misc. appeal against the judgment of the learned Additional District Judge No. 2, refusing to set aside the ex-parte decree passed against him by the learned trial court on March 13, 1977.
(2.) THE facts so far as they are relevant for the disposal of this appeal now may be set out in brief: One Mulkraj, respondent No. 1, filed a suit for eviction against the appellant Vasudeo and his father Naraindas relating to a house, plot No. 579, situated in Adarsh Nagar, Jaipur. Summonses in the suit for the appellant as well as his father Narain Das were issued more than once by the ordinary process, but the same were returned by the Process Server as unserved. It was, therefore, directed by the court that the summonses be sent by ordinary process as well as by registered post. The summonses by registered post for November 22, 1974 for the appellant and respondent No. 2 were sent. The registered envelop meant for Narain Das respondent No. 2 was received with endorsement (Refused) of the Postman whereas registered envelop meant for the appellant was received by an inmate of the house. The Court treating the service on the appellant as complete made an order on February 18, 1976 that suit be heard ex-parte against the appellant. Thereafter the suit was tried in the presence of Naraindas and after trial the suit for ejectment on the ground of default under section 13 (l) (a) of the Rajasthan Premises (Control of Rent & Eviction) Act. 1950 (hereinafter referred to as 'the Act') was decreed against Naraindas after contest and against the appellant as ex-parte. An application under Order 9 Rule 13 C. P. C. was filed by the appellant in the trial court on May 13, 1977 for setting aside the ex-parte decree against him on the ground that he had not been duly served and came to know about the passing of the decree against him through D. S. Baxi and Lotumal Girdhani on May 12, 1977 and after getting the file inspected through his counsel, filed the application on May 13, 1977. As such the application for setting aside the ex-parte decree was within limitation under Article 123 of the Limitation Act. The application was contested on behalf of the plaintiff-respondent No. 1 on both the grounds and the learned trial court after making an inquiry, dismissed the application of the appellant. Mr. Pagaria, learned Advocate for the appellant has contended that the service by registered post cannot be said to be due service on the appellant because the acknowledgement of the registered letter is neither signed by the appellant nor by any member of his family and as such the bare statement of the appellant that Ex. 1 acknowledgement is not signed by him or any body on his behalf is sufficient to rebut the presumption which arises under Section 114 illustration (g) of the Law of Evidence as well as under Sec. 27 of the General Clauses Act. He submits that once the appellant examined himself, it was necessary for respondent No. 1 to examine the Postman in order to prove that the registered envelop was tendered either to the appellant or to some body at his house and the same was received and in token thereof Ex. 1, the acknowledgement was signed. Because the Postman has not been examined, the learned trial court should have held that the appellant was not served and as such should have set aside the ex-parte decree. Mr. Agarwal, learned Advocate for the respondent on the other hand contends that a bald statement of the addressee that the registered envelop was not tendered to him and that the acknowledgement which is purported to be signed by some one on his behalf is not so signed, alone is not sufficient to rebut the presumption which arises in case of postal article in view of section 114 illustration (f) and Section 27 of the General Clauses Act. According to learned Advocate in the facts and circumstances of this case apart from the bald statement of the appellant, who is interested in denying the service, there should have been some other evidence on record to rebut the presumption which arises in such cases. Both the learned counsel have cited a number of authorities in support of their respective contentions. Mr. Pagaria has relied on Kassim Ebrahim Saleji vs. Johrumull Khemka (1), M/s. Sitaram Ramavtar vs. M/s. Lohiya Murlidhar Meghraj (2), Sunder Spinner vs. Mukan Bhula (3), Appabhai Motibhai vs. Laxmi Chand Zaverchand and Co. (4), Meghji Kanji Patel vs. Kundanmal Chamanlal Mehtani (5), Puwada Venkateswara Rao, vs. Chidemana Venkata Ramana (6), Jagat Ram Khullar vs. Battu Mal (7) and B Padmavathi Rai vs. Parvathi-amma (8 ). Saleji's case (supra) is a case of substituted service by affixture not on the residential house of the addressee but on business premises. It was held that in case of substituted service, it is most essential that the requirements of the rules of Code of Civil Procedure should be strictly observed. It was further held that before the mode of substituted service could be resorted to sincere efforts must be made to personally serve the defendant. For that end the Process Server should not only go to the house of the addressee but also should make an inquiry and if necessary follow him and should go to the house at the time the address may be found there. This ruling will not apply to the facts of the instant case inasmuch as it is not a case of service by affixture and moreover a perusal of record shows that several attempts were made earlier by the Process Server to serve the appellant, but he was not available at his house. M/s Sitaram's case (supra), also has no relevance to the present case because it was a case under Order 5 Rule 20-A C. P. C. and it was held that before recourse can be had to the provisions of Order 5, Rule 20-A C. P. C. a genuine attempt of service in ordinary mode is to be made first and if the summonses are returned unserved only then a summons by registered post either in lieu of or in addition to the service under ordinary course can be resorted to. Sunder Spinner's case (supra), Appa Bhai's case (supra) and Meghji Kanji Patel's case (supra) all of Bombay High Court are cases of endorsement of the Postman on the registered envelop "refused" and it was held that mere denial of the defendant in the court on oath that he refused to receive the envelop on being tendered by the Postman rebuts the presumption which arises under section 114 illustration (f) of the Law of Evidence.
(3.) VENKATESWARA Rao's case (supra) is important. It was also a case of return of the registered envelop with endorsement of the Postman as "refused". Meghji Kanji Patel's case as also the case of Nirmalabala Debi vs. Provat Kumar Basu (9) were referred and approved. It was observed by their Lordships of the Supreme Court as under: "it may be that, on a closer examination of evidence on record, the court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct. " Jagat Ram's case (supra) is also a case of an endorsement of the Post-man on the registered envelop as "refused". It was held that ordinarily a statement of addressee on oath that the postal cover said to have been refused by him was never tendered to him, would be sufficient to rebut the presumption shifting the onus on other side to establish by evidence that the service had been duly affected. But it can only be so if the statement of a party on oath inspires confidence. In Padmavathi's case (supra) also a similar view was taken. From the discussion of the various authorities referred to above, it can be said that if the evidence of the defendant on oath that he did not refuse to accept the postal article when the same was tendered to him by the Postman, inspires confidence, a presumption which generally arises under Section 114 illustration (f) of the Law of Evidence and Section 27 of the General Clauses Act generally will stand rebutted. But if there is other material on record such as admission or conduct of the defendant which makes his statement unreliable, then a bald statement of the defendant on oath will not rebut the presumption which is no doubt; a rebuttable presumption of fact. ;