BASANT SINGH AND ANR. versus ROMAN CATHOLIC MISSION

Citation: [2002] SUPP. 3 S.C.R. 70 · Decided: 03-10-2002 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Leave granted

Judgment (excerpt)

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B 
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BASANT SINGH AND ANR. 
V. 
ROMAN CATHOLIC MISSION 
OCTOBER 3, 2002 
[Y.K. SABHARWAL AND H.K. SEMA, JJ.] 
Civil Pr.ocedure Code, 1908: Order 5 Second proviso to Rule 19A and 
Order; 9 R11le I 3: 
Substituted Service-Trial Court directed substituted service by ordering 
publication of summons in a certain local daily newspaper-Publication of 
summons in another local daily-Effect of-Held, it amounts to mere 
irregularity in service of summons-However, it is inherently probable that 
publication of summons in another local daily with wide circulation in the 
D area would have constituted sufficient notice to the defendants. 
Service of Notice-Proof of-Presumption-Discussed--General Clauses 
Act, 1897: Section 27. 
Respondent-landlord filed a suit against the appellant-tenants. Trial 
E Court ordered issue of summons to tenant-appellant both by ordinary 
process and by registered post. Awaiting receipt of the service report, 
Court again ordered issue of summons and also substituted service by 
publication of summons in a certain local daily newspaper. However, 
summons were published in another local daily. Appellant did not turn 
p up, and Court passed an ex-parte decree. Subsequently, the Court rejected 
the application flied by the appellant for setting aside ex-parte decree. 
Appeal thereon and Revision Petition were rejected by the High Court. 
Hence this appeal. 
It was contended for the appelia11t that the Trial Court acted in 
G violation of the procedure prescribed under Order 5, CPC; and that since 
Trial Court did not pass any order of it!; satisfaction that defendant was 
avoiding the service, it ought not to hav1e ordered substituted service. 
Dismissing the appeal, the Court 
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70 
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BASANTSINGHv. ROMAN CATHOLIC MISSION 
71 
HELD: 1. Once it is proved that summons were sent by registered A 
post to a cotrect and given address, the defendants' own conduct becomes 
important. The premises in question is occupied by two defendants jointly-
one appeared and examined himself stating that he did not receive the 
registered letter. However the other defendant did not appear and no 
evidence whatsoever, on his behalf, has been led to rebut the presumption B 
in regard to service of summons sent to him under registered post with 
acknowledgment due. His own conduct shows that the registered summons 
had been duly served on him. In regard to other defendant, no evidence 
whatsoever was led to rebut the presumption. He could have examined 
the postman, who would have been the material witness and whose 
evidence would have bearing for proper adjudication. He has failed to C 
discharge the onus cast upon him by the Statute. It is inherently 
improbable that the registered summons were duly served on one of the 
tenants but not to other when they occupied the tenanted premises jointly. 
174-D, E, F, GI 
2.1. The Court's satisfaction that defendant is avoiding the service D 
is implicit in the order directing service by publication. 173-8) 
2.2. It is inherently probable that publication in the other local daily 
which is also widely circulated in the area would have constituted sufficient 
notice to the defendants. The publication of the substituted service in the E 
local daily other than the one which is ordered by the Court is mere 
irregularity in service of summons. Second proviso to Order 9 Rule 13 
casts an embargo on the Court that a decree passed ex-parte shall not be 
set aside merely on the ground that there has been an irregularity in the 
service of summons. 173-F; H; 74-A) 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6489 of 
2002. 
From the Judgment and Order dated 13.9.2000 of the Madhya Pradesh 
High Court in C.R. No. 416 of 1998. 
M.L. Lahoty, Sushi! Kr. Jain, Ms. Pratibha Jain and Paban K. Sharma 
for the Appellants. 
S.K. Gambhir and R.K. Maheshwari for the Respondent. 
The Judgment of the Court was delivered by 
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SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R. 
A 
SEMA, J. Leave granted. 
The sole question that falls for consideration in this appeal is, whether 
the service of notice sent by registered post with acknowledgement card in 
terms of Order 5 second proviso to Rule 19A of the Code of Civil Procedure 
read with Section 27 of the General Clauses Act, 1897 can be accepted as a 
B sufficient notice. 
This appeal filed by the defendants (judgment debtors) arises out of the 
following material facts. Suit No 473 of 1985 filed by the landlord ended in 
passing of an ~x-p

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