Sarbeswar Ghosh vs Manab Kumar Sajjan and another

A. M. Bhattacharjee, J.—The appellant filed an application under the provisions of O.9, R. 13 of the CPC seeking to assail an ex parte decree passed against him on the ground that no summons were served on him or, at any rate, were not duly served.

It is obvious from the records of the suit that the summonses were served on and received by the appellant''s adult brother at the residence and under the provisions of Rule 15 of Order 5, as substituted by the CPC (Amendment) Act of 1976, that was apparently good service. Neither the applicant, nor the brother came to dock to state that he was not a brother or an adult member of the family or that summonses were not received by him, or that the applicant was not absent at the time when service of summons was sought to be effected.

The burnt of the argument on behalf of the appellant/applicant is that under the provisions of Rule 19A of Order 5, as inserted by the aforesaid Amendment Act of 1976, a simultaneous issuance of summons to be served by registered post is mandatory and the personal service in this case under Rule 15 was invalid and ineffective as there was no issuance of summons by registered post as well.

It is true that Rule 19A(1) uses the expression "shall", but it is trite to say that the word "shall" is not necessarily mandatory. The provisions of the proviso to Rule I9A providing that the Court may, in the facts and circumstances of the case, dispense with issuance of summons simultaneously by registered post, cannot but rob the mandatory character of the Rule, even if it otherwise would have one.

It is urged that even if such service can be dispensed with, it can only be done after the Court records its satisfaction as to such service being unnecessary. The proviso does mot use any expression like "for reasons to be recorded in writing" or the like. But even if did so, mere non-recording of reasons could not be fatal, though recording of reasons would be very much desirable. Reference may be made to the provisions of Order 41, Rule 27(2), which in express terms provide that "the Court shall record the reason for the admission" of additional evidence. But a unanimous five-Judge Bench of the Supreme Court has nevertheless ruled in K. Venkataramiah Vs. A. Seetharama Reddy and Others, that mere failure to record reasons would not affect the legality or the weight of such evidence, if the same could otherwise be legally let in.

We must not forget that, even though permissive and not obligatory, there is a presumption, as referred to in Illustration (e) to Section 114 of the Evidence Act, that "judicial and official acts have been regularly performed". In the absence of anything on the record to overthrow such presumption, we do not see why we should not hold that the Court did not direct issuance of summons simultaneously by registered post as it considered the same to be unnecessary.

Reference may also be made to the provisions of sub-rule (2) of Rule 19A, where it is provided that in case of service of summons by registered post, "the Court shall declare" that the summons had been duly served. But, needless to state, notwithstanding such apparent mandate, absence of any such declaration cannot, by itself, make the service bad. No citation should be necessary for this too obvious a proposition, but still we would like to note that the Rajasthan High Court has also expressed the same view in respect of Rule 19A(2) in Prakash Chander Vs. Smt. Sunder Bai and Another,

We accordingly, in agreement with the Court below, find no merit in this appeal and dismiss the same with costs assessed at 100 G.M.

AjitKumar Nayak, J.

9.I agree.

Appeal dismissed.