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Judgment
Hon''ble Justice Murari Prasad Shrivastava
The present application has been filed by the defendant No. 1 praying for dismissal of the suit on the ground that writ of summons was not served upon the defendant No. 3 which is a necessary and proper party in the suit and plaintiff by way of affidavit in opposition has opposed the prayer stating that as per provisions of order 5 rule 19A Civil Procedure Code, which was the law prevailing at the relevant time, the summons which was properly addressed, prepaid and duly sent by registered post with acknowledgement due is clearly presumed to have been duly served as the acknowledgement has not been received by the Court within 30 days from the date of issue of summons. An affidavit has also been filed by the serving officer who states having forwarded the copies of the writ of summons along with copy of plaint by post under registered cover with acknowledgement due properly addressed to all the defendants. Learned Counsel appearing for the defendant No. 1 refers to the provisions of rules 21 & 26 of Chapter-VIII of the Original Side Rules of this Court and submits that plaintiff has not been able to prove that summons was served in the manner provided by the Civil Procedure Code. He refers to the report of the Deputy Sheriff, which has been made annexure -B to the application, and submits that though the writ of summons along with copy of plaint were sent through registered post with acknowledgement due, only the postal acknowledgement receipt in respect of defendant No. 2 was received by the department and nothing was received in respect of defendant Nos. 1 & 3. He, however, candidly admits that writ of summons was served upon the defendant No. 1, after which the said defendant No. 1 appeared and filed written statement. Learned Counsel further submits that it was incumbent upon the plaintiff to apply for issuance of fresh summons within 7 days immediately after non-service of the writ of summons upon defendant No. 3 and the said period having expired in 1998 and plaintiff not having taken any further steps in the suit the, same should be dismissed for non-service of writ of summons upon defendant No. 3.
Learned Counsel for the plaintiff on the other hand submits that there is no denial that the summons was properly addressed, prepaid and duly sent by registered post with acknowledgement due as is clear from annexure- B to the application filed by the defendant No. 1. The affidavit of the serving officer also points in this regard for which as per proviso to rule 19A of order 5 of the CPC there is a strong presumption of the summons having been duly served upon defendant No. 3 for which the prayer of defendant No. 1 should be rejected.
Upon consideration of the materials on record and the submissions of learned Counsels for the parties I find that the writ of summons along with copy of plaint was properly addressed, prepaid and duly sent by registered post with acknowledgement due to the defendant No. 3 on 07.10.1998 and that the acknowledgement receipt for some reason was not received by the department. The declaration in the form of affidavit of the serving officer, as enjoined by the Calcutta amendment to rule 19A of order 5 of the CPC has also been filed by the plaintiff. So, as per the proviso to rule 19A(2) the service upon defendant No. 3 shall have to be declared, the acknowledgement due having not been received within 30 days from the date of issue of summons. I have no hesitation in holding that the provisions of rules 21 & 26 of Chapter -VIII of the Original Side Rules have duly been complied with and service upon defendant No. 3 has been effected.
Under such circumstances the prayer of defendant No. 1 for dismissal of the suit is rejected. The application is accordingly disposed of. Urgent Xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.