The plaintiff in OS.No.35 of 2008, filed this Civil Revision Petition against Order, dated 02-11-2011, in IA.No.243 of 2010, on the file of the learned Senior Civil Judge, Adilabad.
The petitioner- Company filed the aforesaid suit for recovery of a sum of Rs.6,42,516/- from the respondent- Industry and an ex parte decree was passed on 29-01-2009. Thereafter, the petitioner filed an Execution Petition. After receipt of EP notice, the respondent filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short ‘the CPC’) for setting aside the ex parte decree. As there was delay of 30 days in filing the said application, the respondent has filed IA.No.243 of 2010 seeking condonation thereof.
The petitioner filed a detailed counter-affidavit wherein it resisted the said application. The petitioner has denied the allegation of the respondent that it has not received the suit notice and that therefore, it has no knowledge of passing of an ex parte decree and; that, for the first time, the respondent came to know about the passing of the decree after receipt of EP notice. It is specifically averred in the counter-affidavit that, initially, the petitioner has got legal notice served on the respondent on 24-03-2008; that the suit notice was served on the respondent on 01-12-2008 and; that in spite of the said notices, the respondent did not appear before the Court, due to which the suit was decreed ex parte on 29-01-2009. On this premise, the petitioner has taken the plea that, as the respondent had notice in the suit, the delay should be reckoned from 29-01-2009 i.e., the date on which the ex parte decree was passed and not from the date of receipt of EP notice and that there is, accordingly, a delay of almost two years in filing the application for setting aside the ex parte decree. This plea of the petitioner is, however, rejected by the learned Senior Civil Judge, Adilabad. Even though the acknowledgment of notice, issued by the Court in the suit, is not marked, the lower Court, nevertheless, considered the same, on which the petitioner placed reliance. The lower Court has observed that the acknowledgment contains signature of the receiver but neither the name of the receiver nor the stamp of the respondent-industry have been seen therein. On this premise, the lower Court has refused to rely upon this acknowledgment. Feeling aggrieved thereby, the petitioner filed the present Civil Revision Petition.
In my opinion, the whole approach of the lower Court is perverse. Having given the finding that the notices were sent to the correct address as shown in the plaint, the lower Court failed to understand its implication.
Under Section 27 of the General Clauses Act, 1897, where an Act or Regulation requires service by post, unless a different intention appears, the service shall be deemed to be affected by properly addressing, pre-paying and posting by registered post, the letter containing the document and unless the contrary is proved, delivery is deemed to have been affected.
Under Order V Rule 9 (5) of the CPC, when an acknowledgment or any other receipt purported to be signed by the defendant or his agent or postal article containing the summons is received by the Court with an endorsement purported to have been made by the postal employee or any person authorized by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified under sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that summons have been duly served on the defendant.
The lower Court has completely failed to notice the above-mentioned statutory provisions and unjustly rejected the acknowledgment produced by the petitioner. It is not the pleaded case of the respondent that the acknowledgment was manipulated. As per the above-mentioned provisions, by placing the acknowledgment before the Court, the petitioner has discharged its burden that the respondent has received summons. The burden, therefore, shifted to the respondent to prove that no such notice has been received by it or any of its authorized representatives. Regrettably, the lower Court has failed to place the burden on the respondent to prove that the acknowledgment received by the Court does not contain the signature of any of the authorized representatives of the respondent. Since the petitioner was able to prove that the acknowledgment was received by the Court showing that the suit summons were served on 01-12-2008, the lower Court committed a serious error in holding that there is no proper proof of service of notice on the respondent. As it is established that the respondent had received the suit notice, its plea that it had no knowledge of the passing of the ex parte decree is an utter falsehood. Therefore, the respondent cannot plead to ignore the delay till the service of notice in the EP. As rightly pleaded by the petitioner, there was nearly two years delay in the respondent filing the application for setting aside the ex parte decree The lower Court has miserably failed to make a proper and correct approach in appreciating these glaring facts borne by record.
Another aspect, which reflects the conduct of the respondent, needs to be noted. Even though notice has been sent by the petitioner through registered post as ordered by this Court, the respondent has refused to receive the same and the notice has been returned by the postal department with the endorsement 'not cl
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aimed and returned to sender' This also reinforces the plea of the petitioner that the respondent is in the habit of either receiving and not responding or rejecting the notices. The respondent does not appear to have faith in the due process of law. For the above mentioned reasons, the Civil Revision Petition is allowed and Order, dated 02-11-2011, in IA.No.243 of 2010 in OS.No.35 of 2008, on the file of the learned Senior Civil Judge, Adilabad, is set aside. Consequently, IA.No.243 of 2010 stands dismissed. As a sequel, interim order, dated 15-02-2012, is vacated and CRPMP.No.965 of 2012 is disposed of.