Appellate Division cases
(Civil)
PARTIES
Abdur Rob Mollah ………………………………Appellant
-Vs-
Shahabuddin Ahmed and others ………………..Respondent
JUSTICE
Md. Ruhul Amin J
M.M. Ruhul Amin J
JUDGEMENT DATE: 19th October 2006
The Code of Civil Procedure, Order 5, 41, Rule 19B, 21, Sub-Rule 2. The General Clauses Act, Section 27. Evidence Act, Section 114. Monomohan Roy Chowdhury Vs. Ajit Kamal Dutta reported in 6 DLR 267. Dr. Jamshed Bakht Vs. Md. Kamaluddin
reported in (1981) 1 BLD (HCD) 97. AIR 1918 PC 102, 39 CWN 934 and 52 CWN
659.
The respondent opposite party No.l failed to discharge his onus that inspite of issuing the summons through registered post with acknowledgement due, as required under Sub-Rule 2 of the Rule 19B of Order V of the Code of Civil Procedure ………………..(7)
Inspite service of summons on the mother of all the Respondents, was of the view that there was no reason for the Respondent No.2 in the Miscellaneous appeal and petitioner in the Miscellaneous Case No.7 of 1992, who is the appellant herein, of not having knowledge about the pendency of the appeal and thereupon held that ther was proper service of summons by the process server on the Respondent No.2 i.e. petitioner in the Miscellaneous Case. The High Court Division was also of the view since the Respondents in the Miscellaneous Appeal were joint Mutawallies and two of the Mutawallies having had entered appearance in the appeal it is difficult to accept that other Mutawalli i.e. petitioner in the Miscellaneous Case was not aware of the pendency of the appeal ……………….(11)
There was due and proper service of summons through the process server on the Respondents. We are of the opinion the mode in which personal service of summons was effected on the Respondent No.2 of the Miscellaneous Appeal No.7 of 1989 i.e. appellant herein in the eye of law was not a due and proper service of summons on the petitioner in the Miscellaneous Case who was Respondent No.2 in the
Miscellaneous Appeal since his mother was not his …………………(12)
Whether the summons which was sent to the appellant herein, who was Respondent
No.2 in Miscellaneous Appeal No.7 of 1989, by registered post with acknowledgement due and that return of the envelope by the postal peon with the endorsement “refused” was a good service in the eye of law or in other words when summons is sent by registered post with acknowledgement due and the postal peon returns the envelope with the endorsement “refused” it shall be considered that the summons was duly served on the addressee………………….(17)
Particular address which is the correct address of the addressee by registered post and the postal peon returned the envelope with the endorsement “refused” shall be considered that there has been due service of the summons. If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself. As a general rule the Court will assume, unless the contrary is proved, that letters which are proved to have been mailed do arrive in ordinary course of post, and it is on those who dispute that inference to show the contrary ……………….(18)
Hari Pada Dutta Vs. Joy Gopal Mukherjee reported in 39 CWN 934 and therein it has been observed “A summons sent by registered post and returned with the endorsement “refused” is prima facie evidence that the addressee had an opportunity to accept it and the service, thus effected, is, therefore, a good and valid service ……………(19)
In a case where a registered notice has come back with the postal endorsement “refused”, it is for the defendant addressee who denies receipt of the registered notice to prove that the notice was not properly addressed to him or it was never tendered to him. The plaintiff need not prove the service of the registered notice duly addressed ………………(20)
When the summons is sent by registered post from the Court and if the postal peon returned the envelope in which the summons was sent to the defendant/respondent with the endorsement “refused” and if it is not established by the addressee, that the address to which the summons was sent was not his address or that postal peon did not tender the register envelope to him and as such he had no occasion to refuse the acceptance thereof, then it shall be considered that the summons has been duly served on the addressee ……………(21)
So letter sent, notice or summons sent by registered post and if returned with the
endorsement ‘refused’ shall be accepted as good and due service of notice of summons and the delivery of the letter to the person addressed unless the addressee rebut the presumption of good service of delivery of letter by adducing evidence ……………..(22)
Civil Appeal No.201 of 2001 (From the Judgment and Order dated July 20, 1999 passed by the High Court Division in Civil Revision No. 1825 of 1994)
Md. Nawab AH, Advocate-on-record ……………….For the Appellant
Respondent……………… Ex-parte
JUDGMENT
1. Md. Ruhul Amin J:- The appeal has been filed against the judgment dated July 20, 1999 of a Single Bench of the High Court Division in Civil Revision No. 1825 of 1994 making the Rule absolute upon setting aside the order dated October 18, 1993 of the court of Additional District Judge, Narayanganj in Miscellaneous Case No. 7 of 1992 allowing
the same. The Miscellaneouse Case was registered upon and application filed under Order 41, Rule 21 of the Code of Civil Procedure.
2. The aforesaid Miscellaneous Case was filed seeking re-hearing of the Miscellaneous
Appeal No.7 of 1989 filed against the order dated October 26, 1987 of the Administrator of Waqfs rejecting the application filed by the Respondent No. 1 herein seeking removal of the appellant and two others (Respondent Nos.2 and 3 herein) who were the joint Mutawallies of the Panchpeer Darga Waqf Estate (E.C. No. 6831) in Narayanganj. The Respondent No. 1. challenged the order of Admisitrator of Waqfs by filing Miscellaneous Appeal No. 7 of 1989 before the Court of District Judge, Narayanganj. The said appeal was heard by the Court of Additional District Judge, Narayanganj and was allowed ex-parte on Novemebr 11, 1991.
3. The appellant thereafter filed the Miscellaneous Case No. 7 of 1992 under Order 41, Rule 21 of the Code of Civil Procedure alleging that the summons of the appeal was fraudulently suppressed and that the appellant, i.e. Respondent No. 1 herein, in collusion with the process server managed the report that the summons was served upon the appellant who was Respondent No.l in the Miscellaneous Appeal No.7 of 1989 but in fact no summons was served upon him and other Respondent and consequently he had no
knowledge about the filing of the appeal by the Respondent No. 1 (herein), that he only of late came to know about the disposal of the appeal ex-parte.
4. The Miscellaneous case was contested by the Respondent No.l (herein) who was appellant in Miscellaneous Appeal No. 7 of 1989.
5. The learned Additional District Judge allowed the Miscellaneous Case No.7 of 1992 on the finding that the same was not barred by limitation and that summons was not duly served on the appellant herein who was Respondent No.2 in the Miscellaneous Appeal either by the process server or by registered post. The learned Additional District Judge was of the view since the summons sent by registered post was returned by the postal peon with the endorsement ‘refused’ in respect of two of the respondent i.e. appellant and another and that the summons sent by registered post with acknowledge receipt to other
Respondent and the acknowledgement receipt in respect of the said Respondent was not received by the Court and that it having been contended by the petitioner in the Miscellaneous case i.e. Respondent No.2 in the Miscellaneous Appeal No. 7 of 1989, that the registered envelope was not offered to him by the postal peon and as such endorsement of the postal peon as to refusal of the registered envelpoe by the petitioner in the Miscellaneous Case (Respondent No.2 in the Miscellaneous Appeal) was a collusive one and that postal peon having not been examined by the appellant i.e. Respondent No.l herein it has not been proved that the summons on the petitioner in the Miscellaneous Case and others was served. The learned Additional District Judge also observed that as the process server served the summons on the mother of the Respondents in the appeal who was not the authorised agent of the Respondents there was no service of summons on the Respondent and that it can not be said that Respondent No.2, i.e. appellant herein, who was petitioner in the Miscellaneous Case had the knowledge of the case although his other brothers i.e. Respondent Nos.l and 2 herein appeared in the Miscellaneous Appeal.
6. As against the order of the learned Additional District Judge Allowing the Miscellaneous Case No. 7 of 1992 and thereupon restoring the Miscellaneous Appeal
No.7 of 1989 to its file and number upon setting aside the ex-parte order dated November
11,1991 allowing the appeal, the Respondent No. 1 herein, who was appellant in
Miscellaneous Appeal No. 7 of 1989, moved the High court Division in revisional jurisdiction and obtained Rule.
7. The High Court Division made the Rule absolute on the finding “The respondent
opposite party No.l failed to discharge his onus that inspite of issuing the summons
through registered post with acknowledgement due, as required under Sub-Rule 2 of the
Rule 19B of Order V of the Code of Civil Procedure, the said notice actually did not
reach him and since inspite of appearance of the respondent No. 1 who is his own brother
and respondent No.3 who is his stepbrother, in Court who were also his joint Mutawallies, still he was not aware of the appeal, and as such, the learned appellate Judge committed an error of law in allowing the Miscellaneous Case which occasioned a failure of justice, as the respondent opposite party failed to prove that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing.”
8. Leave was obtained for consideration of the contentions that the High Court Division was in error in considering service of summons on the appellant’s mother as valid and good service of summons on the appellant who was Respondent No. 2 in the Miscellaneous Appeal No.7 of 1989 and the petitioner in the Miscellaneous Case No.7 of 1992 although mother of the appellant was not his authorised agent to receive summons on his behalf, that the High Court division was in error in considering return of the notice sent through registered post with the endorsement of refusal as good service while admittedly postal peon has not been examined in proof of the fact that the notice was offered to the appellant and that he refused to accept the same, that the High Court Division was in error in placing reliance on the provision of Section 114, illustrating (f) of the Evidence illustration Act and provision of Section 27 of the General Clauses Act in
the background of the facts and circumstances of the case in holding that notice sent by registered post was duly and properly served on the appellant although the learned Additional District Judge on scrutiny of the record on being satisfied as to non-service of summons of the appeal on the appellant properly and duly set aside the ex-parte judgment and order passed in Miscellaneous Appeal No. 7 of 1989.
9. It may be mentioned the process server who went to the locality of the Respondents (in
Miscellaneous Appeal No. 7 of 1989) to effect personal service of summons of the appeal on the Respondents including the appellant herein figured as O.P.W. No.2 and had deposed that while he went to the residence of the Respondents in the appeal, i.e. Miscellaneous Appeal No.7 of 1989, the Respondent i.e. appeallant and the Respondent Nos. 2 and 3 herein were not in their house and that for and on behalf of the said Respondents their mother received the noted the names of the ‘Mokabila’ withnesses but those ‘Mokabila’ withnesses were not examined by the Respondent No.l (herein), who was opposite party in the Miscellaneous Case No. 7 of 1992. It was the case of the appellant herein, who was respondent No.2 in the Miscellaneous Appeal No.7 of 1989, that his mother was not his authorised agent to receive the summons for and on his behalf and because of that as there was no services of summons on him and as such he had no
knowledge about the appeal and consequent thereupon the appeal was disposed of ex-parte and that he had no knowledge either of the appeal or disposal of the same ex-parte on or before September 24,1992 for the first time and thereafter had the definite information on 26th September, 1992 upon obtaining information through the information slip. The appellate Court i.e. the Court of the Additional District Judge, Narayanganj was of the view that personal service of summons was not duly made as the summons was served on the mother of the Respondent No.2 i.e. appellant herein who was not the authorised agent of the said Responednt and as such the same can not be considered in the eye of law as due service of summons on the said Respondent.
10. It may be mentioned in the background of the fact of effecting of service through the
process server on the mother of the Respondents i.e. Respondent Nos.l and 3, entered appearance in the appeal but ultimately they did not participate in the hearing of the appeal and consequently the appeal was disposed of ex-parte.
11. The High Court Division in the background of the aforesaid fact, i.e. fact of
appearance of the two Respondents of the Miscellaneous Appeal No.7 of 1989 inspite service of summons on the mother of all the Respondents, was of the view that there was no reason for the Respondent No.2 in the Miscellaneous appeal and petitioner in the
Miscellaneous Case No.7 of 1992, who is the appellant herein, of not having knowledge about the pendency of the appeal and thereupon held that there was proper service of summons by the process server on the Respondent No.2 i.e. petitioner in the Miscellaneous Case. The High Court Division was also of the view since the Respondents in the Miscellaneous Appeal were joint Mutawallies and two of the Mutawallies having had entered appearance in the appeal it is difficult to accept that other Mutawalli i.e. petitioner in the Miscellaneous Case was not aware of the pendency of the appeal.
12. In the afore state of the matter the High Court Division was of the view that there was due and proper service of summons through the process server on the Respondents. We are of the opinion the mode in which personal service of summons was effected on the
Respondent No.2 of the Miscellaneous Appeal No.7 of 1989 i.e. appellant herein in the eye of law was not a due and proper service of summons on the petitioner in the
Miscellaneous Case who was Respondent No.2 in the Miscellaneous Appeal since his mother was not his authorised agent to receive the summons of the Miscellaneous Appeal on his behalf.
13. The summonses of the appeal were also sent by registered post as per provision of
Rule 19B of Order 5 of the Code of Civil Procedure. Two of the registered envelopes
were returned by the postal peon with the endorsement ‘refused’. The other registered
envelope in which summons of the appeal was sent appears to have been served since the
same was not returned by the postal peon to the person from whom it was sent. The registered envelope was sent with the acknowledgement due receipt. In the case of the 3rd envelope which was not returned to the Court the acknowledgement receipt was not
received. In the afore state of the matter the learned Additional District Judge was of the
view that there was not service of summonses by the registered post too.
14. The learned Additional District Judge was in error in holding since acknowledge receipt was not received by the Court consequently summons sent by registered post can not be considered due service of summons by registered post as because proviso to Sub-Rule 2 of Rule 19B of the Code of Civil Procedure provides that when the summons was sent by registered post with acknowledgment receipt due and that after 30 days even if acknowledge is lost or mislaid or for any other reason, was not received by the Court it would be considered that the summons was duly served by the registered post.
15. Sub-Rule 2 of Rule 19B of Order 5 of the Code of Civil Procedure is as follows:
“(2) When an acknowledgement purporting to be signed by the defendant or his agent is
received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that where the summons was properly addressed pre-paid and duly sent by registered post with acknowledgement due, the declaration referred to in this sub-rule may be made notwithstanding the fact that the acknowledgement having been lost or mislaid or for any other reason, has not been received by the court within thirty days from the date of issue of the summons”.
16. It is seen from the provision of Sub-Rule 2 of Rule 19B of Order 5 of the Code of Civil Procedure that if the registered envelope is returned to the Court with the endorsement made by the postal peon that the addressee or his agent has refused to receive the envelope on being tendered, even then it will be considered “that the summons had been duly served on the defendant”.
17. Provision of Order 5 of the Code of Civil Procedure provides for personal service of summons and simultaneously by registered post with acknowledgement due. The most point in the appeal is whether the summons which was sent to the appellant herein, who was Respondent No.2 in Miscellaneous Appeal No.7 of 1989, by registered post with acknowledgement due and that return of the envelope by the postal peon with the endorsement “refused” was a good service in the eye of law or in other words when summons is sent by registered post with acknowledgement due and the postal peon returns the envelope with the endorsement “refused” it shall be considered that the summons was duly served on the addressee.
18. The question when summons or a letter is sent to a particular address which is the correct address of the addressee by registered post and the postal peon returned the envelope with the endorsement “refused” shall be considered that there has been due service of the summons or notice or of tendering of the letter came up for consideration in the case of Harihar Banerji and others Vs. Ramshahi Roy and others reported in AIR 1918 P.C. 102 (the same case has also been reported in 45 I.A. 222) and therein it has been observed “If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself”. It the case of In the matter of part cargo ex steamship “Belgia” reported in AIR 1918 P.C. 338 it has been held “As a general rule the Court will assume, unless the contrary is proved, that letters which are proved to have been mailed do arrive in ordinary course of post, and it is on those who dispute that inference to show the contrary”. So from the ration of the aforementioned cases it is seen that one who disputes the delivery of the letter, herein summons, sent by registered post the onus is on him to prove that the letter, as in the instant case the summons sent by registered post, was not tendered to him by the postal peon.
19. The question as to whether refusal of the summons issued by the registered post is good service of the summons came up for consideration in the case of Hari Pada Dutta Vs. Joy Gopal Mukherjee reported in 39 CWN 934 and therein it has been observed “A summons sent by registered post and returned with the endorsement “refused” is prima facie evidence that the addressee had an opportunity to accept it and the service, thus effected, is, therefore, a good and valid service.
20. To invalidate such a service the Defendant must expressly prove, to the satisfaction of the Court, that what would happen in the ordinary course did not happen and that he did not get an opportunity to accept it, and for that purpose it is open to him to prove that he never refused it and that it never was tendered to him. A mere denial that it was ever delivered to him is not sufficient”. The similar question came up for consideration before the Dhaka High Court in the case of Monomohan Roy Chowdhury Vs. Ajit Kamal Dutta reported in 6 DLR 267 and therein the learned Judge upon noticing the ratio of the cases reported in AIR 1918 PC 102, 39 CWN 934 and 52 CWN 659 observed “In a case where a registered notice has come back with the postal endorsement “refused”, it is for the defendant addressee who denies receipt of the registered notice to prove that the notice was not properly addressed to him or it was never tendered to him. The plaintiff need not prove the service of the registered notice duly addressed”. Similar question also came up for consideration before the High Court Division in the case of Dr. Jamshed Bakht Vs. Md. Kamaluddin reported in (1981) 1 BLD (HCD) 97 and the learned Judge of the said Division after noticing the ratio in number of cases including AIR 1918 PC 102, 52 CWN 659, 39 CWW 934, 6 DLR 267, 17 DLR (West Pakistan) 26, 22 DLR 664 observed “It
appears, therefore, that except for the solitary decision reported in AIR 1915 Cal 313 the
preponderant view is that when a notice u/s. 106 of the Transfer of Property Act is sent by registered post and is returned to the sender with the endorsement “refused” in it, the service of notice is deemed to be a good service and it is not necessary to examine the postal peon to prove the endorsement “refused” on it. It is also the preponderant view that mere denial by the defendant that he did not receive the notice or that it was not tendered to him is not sufficient. He is to adduce evidence that he was not tendered any notice and that he did not refuse any notice”.
21. From the ratio of the aforementioned cases it is seen that when the summons is sent by registered post from the Court and if the postal peon returned the envelope in which
the summons was sent to the defendant/respondent with the endorsement “refused” and if it is not established by the addressee, that the address to which the summons was sent was not his address or that postal peon did not tender the register envelope to him and as such he had no occasion to refuse the acceptance thereof, then it shall be considered that the summons has been duly served on the addressee. In the instant case the appellant who was Respondent in the Miscellaneous Appeal No.7 of 1989 did not lead any evidence to show that the address at which summons was sent by registered post was not is address at the relevant time and that postal peon did not tender the registered envelope to him and as such there was no occasion for him to refuse acceptance thereof. In the afore state of the matter we are of the view High Court Division was quite correct in holding that summons of the appeal i.e. Miscellaneous Appeal No. 7 of 1989 was duly and properly served on the Respondent No. 2 in the Miscellaneous Appeal No.7 of 1989, who is the appellant in the instant appeal.
22. The implication of illustration (f) of Section 114 of Evidence Act and the provision of Section 27 of General Clauses Act are that in case of posting of letter, Sending notice or summons by registered to the correct address or to the address of the addressee known to the sender i.e. while no other address of the addressee was made known to the sender or in other words change of address of the addressee was not intimated to the sender, the presumption is that such letter, notice or summons sent by registered post to the person addressed to have been delivered and if the registred envelope is return with the endorsement of the postal peon ‘refused’ by the addressee, then too it shall be considered that the letter, notice and the summons had duly and properly been received or served unless the addressee establishes that letter, notice or summons was not sent to his correct address and as such he had no occasion to refuse the acceptance of the registered letter or the envelop. The person who is disputing or trying to deny the statutory presumption of the matter as provides by the provision of Section 27 of the General Clauses Act and the presumption of correctness of genuineness of the matter as implies by illustration (f) Section 114 of Evidence Act is to rebut the said matter or genuineness/ correctness of presumption of fact upon producing evidence. So letter sent, notice or summons sent by registered post and if returned with the endorsement ‘refused’ shall be accepted as good and due service of notice of summons and the delivery of the letter to the person addressed unless the addressee rebut the presumption of good service of delivery of letter by adducing evidence.
23. In the background of the discussions made hereinabove we find no merit in the appeal.
24. Accordingly the appeal is dismissed without any order as to costs.
Ed.
Source: IV ADC (2007), 161