INDU BHUSHAN versus MUNNU LAL AND ANR.

Citation: [2007] 2 S.C.R. 238 · Decided: 02-02-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

A 
INDU BHUSHAN 
v. 
MUNNU LAL AND ANR. 
FEBRUARY 2, 2007 
B 
[Dr. ARJJIT PASAYA T AND S.H. KAPADIA, JJ.] 
Code of Civil Procedure, 1908; Or. V r.9 and O.XLI rr.14 and 21: 
Service of Notice-Requirement of-Held: Service through process of 
C Court mandatory-Endorsement as to service of notice by Process server 
sufficient to show service of notice-No material placed before Courts below 
to show endorsement so made by process server false/erroneous-Hence 
findings of Courts below about service of notice and dismissal of appeal do 
not suffer from any infirmity to warrant interference-Practice and 
D Procedure-Appeal-Notice. 
Respondent no. I instituted a suit for specific performance of a contract 
The agreement was allegedly executed by the mother of the appellant and 
respondent no.2. It was stipulated in the agreement that the sale deed shall 
be executed by the Vendor after she obtained permission from the authorities 
E under the Urban Land Ceiling Act, 1976. As Vendor failed to execute the 
sale deed the suit for specific performance was filed. The suit was dismissed 
by the Trial Court Appeal filed by Vendee was allowed ex-parte by the First 
Appellate court. An application was filed by the present appellant and the 
respondent no.2 to set aside the ex-parte decree passed by the Court below. 
F The application was rejected by the First Appellate Court The First Appellate 
Court held that there was valid service of the notice; that the evidence of the 
process server clearly established that notice has been served. Appeal filed 
thereagainst was dismissed by the High Court. Hence the present appeal. 
Appellant contended that there was no service of notice through process 
G server or by registered post; that the information regarding decision of the 
appeal came to his knowledge before the High Court when the notice of caveat 
application filed before the High Court by respondent no. I was received; that 
the reports of the process server were not correct; that the First Appellate 
Court and the High Court clearly proceeded on erroneous presumption that 
he had refused to receive the notice. 
H 
ns 
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INDU BHUSHAN v. MUNNU LAL [PASAYAT, J.] 
239 
Respondent no.l submitted that the First Appellate Court and the High A 
Court found that the process server's reports clearly indicated the service of 
the notice to the appellant and respondent no.2 about the pend ency of the appeal. 
Dismissing the appeal, the Court 
HELD: 1.1. Endorsement on letter/notice by the postal department is B 
not to the effect that the addressee has refused to accept the letter tendered. 
(Para - 8) [241-G) 
Mis. Madan and Company v. Wazir Jaivir Chandra, AIR (1989) SC 630, 
referred to. 
1.2. A bare perusal of Order V Rule 9 CPC clearly shows that service 
through process of Court is mandatory. This position is clear from the use of 
c 
the word "may" in the provision. In the instant case, not one but several 
process servers have given notice relating to service and their endorsements 
were sufficient to show service of the notice relating to the appeal. Though D 
it was contended for the appellant that the reports were not correct, the same 
is not acceptable. No material was placed before the Trial Court or the High 
Court to show that the endorsements made by the process servers were false 
or erroneous. Hence the conclusions arrived at by the First Appellate Court 
as affirmed by the High Court do not suffer from any infirmity to warrant 
interference. [Paras 10 & 11) [244-A-C) 
E 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 438 of2007. 
From the Judgment and final Order dated 27.7.2004 of the High Court 
of Judicature at Allahabad in First Appeal from Order No. 410/2004. 
Manoj Prasad for the Appellant. 
Dr. R.G. Padia and Pradeep Mishra for the Respondents. 
The Judgment of the Court was delivered by 
Dr. ARIJIT PASAYAT,J. Leave granted. 
F 
G 
I. Challenge in this appeal is to the judgment rendered by a learned 
Single Judge of the Allahabad High Court dismissing the appeal filed by the 
appellant. In the said appeal the order passed by 11th Additional District & 
Sessions Judge, Varanasi, rejecting the application filed by the appellant for H 
240 
SUPREME COURT REPORTS 
[2007] 2 S.C.R. 
A restoration of the appeal in terms of Order XL! Rule 21 of the Code of Civil 
Procedure, 1908 (for short 'CPC') was rejected. 
2. Background facts in a nutshell are as follows: 
Respondent No.1-Munna Lal instituted a suit for specific perf
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