JUDGMENT Prakash Krishna, J.
1. This is an appeal against the order passed by the court below rejecting the application filed by the present appellant under Order XLI Rule 21, C.P.C.
2. The facts of the case lie in a narrow compass. Respondent Munna Lal instituted Suit No. 170 of 1991 for specific performance of a registered contract, dated 6th March, 1992 to sell the disputed house in his favour. The said agreement was executed by Smt. Krishna Devi, the mother of the present appellants, who has expired during pendency of the suit before the trial court. Out of total sale consideration of rupees one lac Rs. 25,000 was given on 2nd March, 1992 and Rs. 15,000 was given on 6th March, 1992. It was agreed that the agreement shall be executed by the vendor after her obtaining permission from the Urban Ceiling Authority, The vendor having failed to execute the sale deed, the suit for specific performance was filed.
3. The suit was dismissed by the trial court on 3rd of August, 2002. This decree as challenged by the plaintiff/respondent by filing Civil Appeal No. 109 of 2002. The said appeal has been allowed ex parte on 11th July, 2003. To set aside the ex parte decree passed by the court below, an application by the present appellants was filed which has been dismissed by the court below, by the order under appeal.
4. The application was filed on the allegations that no notice of hearing of appeal either through process server or by registered post was served. They got the information of the decision of the appeal for the first time on 28th July, 2003, when the notice of caveat application filed in the High Court was received by them. The file of the appellate court was got inspected and then it transpired that the appeal has been allowed ex parte. It has been further stated that on inspection of the record it has been transpired that the Court below has sent notices six times, thrice through the process server, Ratan Lal and other notices were sent through process server Vijay Kumar, Lakshmi and Ramesh Chandra. The similarity in the report of these process servers shows that the process servers colluded with plaintiff/respondent.
5. Plaintiff/respondent filed objections to the aforesaid application on the pleas inter alia that the appellant No. 2 is an editor of a local newspaper namely, "Jagruk Express" was well aware about the date fixed in the appeal from time to time and he purposely avoided to put in appearance in appeal. Every possible effort was made by the Court to serve the notice on the appellants. All the time the appellants avoided to receive the notices on the pretext that they are not available in the house. Not only the notices were sent number of times through process servers and by registered post, an intimation of appeal was also given to the two counsel engaged by them before the trial court. In view of these facts it was submitted that there is no good ground to recall the judgment and decree dated 11th July, 2003.
6. The Court below has dismissed the application for setting aside the ex parte judgment and decree dated 11.7.2003.
7. Heard learned counsel for the parties and perused the record. Both the learned counsel agreed that the appeal may be heard and decided finally at the admission stage itself.
8. Learned counsel for the appellant submitted that the finding of the Court below that the notices were properly served on the appellants is illegal and factually incorrect. The Court below ought to have allowed the application filed under Order XLI Rule 21, C.P.C. as the appellants were not properly served by the appellate court.
9. Learned counsel for the appellant vehemently argued that an opportunity of hearing should be afforded to the appellants by setting aside the judgment of the Court below. I have given careful consideration to the said submission of the learned counsel for the appellant. The facts as has been found by the Court below clearly shows that the appellants all the times avoided the service of notices of hearing of the appeal. The appellate court made all possible efforts to serve the notices of hearing of the appeal on the present appellants. Ratan Lal, process server visited the defendants/appellants on a number of times to serve the summons in pursuance of the order of the Court. He went to the house of the defendant/appellant thrice and returned the summons with an endorsement that the respondent had gone out or had gone somewhere else. Thereafter Ramesh Chandra, process server was sent by the Court who gave his report on 21st January, 2003, that the defendant/appellant has gone out. A similar report was submitted by the third process server namely, Vijay Shankar and fourth process server Sri Lakshmi Narain. Finding it difficult to serve the notices through ordinary process, the Court ordered the service of summons of appeal by registered post. The post man returned envelope containing the summons with an endorsement 'not met'. In this case the appellant produced the post man in the witness box. I have seen the statement of the post man who is appellant's witness. He has stated that he also made attempts to serve the registered envelope on the appellants thrice but he could not serve them, resultantly the registered letters were returned with the endorsement 'not met'.
10. In State of Madhya Pradesh v. Hira Lal and Ors., (1996) 7 SCC 525, it has been held by the Supreme Court that when the addressee managed to have the notice returned with the postal remarks "not available in the house", "house locked", "shop locked", it must be deemed that the notices have been served on the respondent. Learned counsel for the appellant has placed reliance upon certain rulings though not referred during course of arguments but submitted along with written arguments for the proposition that when a registered envelope is returned with the endorsement of refusal and the addressee has denied the refusal in the witness box the presumption of service stands rebutted, A reference has been made to the following cases :
(1) Kesto Chandra Chatterji v. Chandra Pal Singh, 1981 ALJ 151.
(2) Hub Lal v. Bhudeo Prasad Sharma, 1980 ALJ 437.
(3) Gopal Shankar Dubey v. Rauniyar Biradari Panchayat Committee, 1988 AWC 1037.
(4) Ram Rati v. Fakira, 1988 AWC 268.
I am of the view that the aforesaid rulings have no application to the facts of the present case. In these cases the High Court considered the endorsement of refusal by the post man on a registered letter and the denial by the addressee that he ever refused to receive the said postal article. These cases are distinguishable from the very fact that in the case in hand there is no endorsement of refusal by the post man, the endorsement made by the post man is 'not met'. No doubt in the above cases it has been held that a mere denial by the addressee that he has refused to accept the article is sufficient to rebut the presumption of service. The High Court has taken a different view in many other cases. In Keshav and Anr. v. IVth A.D.J., 1994 (1) AWC 381 : 1994 (1) ARC 80, it has been held that no doubt the presumption of service of a letter sent under registered cover is there, if the same is returned back with an endorsement that the addressee refused to accept the same, the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by saying that the address mentioned on the cover was incorrect or that the postal authorities never tendered registered letter to him, or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. To the same effect I could lay my hand to another judgment given in the case of Jhabul Ram v. District Judge, 1994 (1) AWC 381 : 1994 (1) ARC 88. It has been held that a bald denial of addressee could not absolve him from the burden of rebutting the presumption of service of notice arising from the endorsement by the postal authorities on the registered cover containing the notice.
11. The Supreme Court in the case of Gujarat Electricity Board v. Atma Ram, AIR 1989 SC 1433, has ruled as follows :
"There is presumption of service of letter sent under registered cover, if the same is returned back with a postal endorsement that addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect, or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption, lies on the parties, challenging the factum of service. In the instant case, the respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of registered cover."
12. Thus, I find no force in the argument of the learned counsel for the appellant that when a registered letter has been returned back with the endorsement of refusal, the presumption of service is rebutted if the addressee denies its receipt in evidence. Mere denial is not sufficient.
13. The Apex Court in the case of Madan and Company v. Wazir Jaivir Chandra, AIR 1989 SC 630, has dealt with the matter in great detail. In paragraph 6 of the report it considered the effect of endorsements such as "not found", "not in station", "addressee has left" and so on. The relevant paragraph is quoted below :
"The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In neither case, there is no difficulty, for the acceptance or refusal be treated" as a service on and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee ; he is not expected to detain the letter until the addressee chooses to return and accept it ; and he is not authorised to affix the letter on the premises because of the addressee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under O.V. of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the word "sewed" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant."
14. Be that as it may in the case in hand the registered letter was returned with the endorsement "not met" by the postman. The Supreme Court has considered the legal effect of such endorsement with reference to the service of the letter in the case of M/s. Madan and Company (supra). This case is squarely applicable to the facts of the present case. It is not the case of the appellant that the address mentioned on the registered envelope was incorrect or incomplete. The striking feature of the case is that whenever the notices or summons were sought to be served on the appellant by the Court below they have always been returned with the vague endorsements such as "not found", "addressee has left" and "not met".
15. In view of the totality of the facts and circumstances of the case in hand, it is clear that appellant No. 2 who is running a daily newspaper and also an editor of a daily newspaper has every time managed to have the notice returned sent through ordinary process server as well as through registered post with the remarks 'not met'. In view of these facts, I do not find any legal and factual error in the order of the Court below. In the present case, the appeal remained pending for about 1-1/2 years and no stone was left unturned to effect the service of notice of hearing of the appeal on the present appellants. It is not a case where a single attempt was made to serve the notice and the case was decided immediately thereafter. The eagerness of the plaintiff/ respondent and the Court below to serve the plaintiff/appellant is further clear from the facts that the notices were also given to the two counsel, namely, Shri R. K. Tiwari and Shri Kashi Nath, advocates. The appellant No. 2 has displayed a strange conduct. The postman was examined on his application as his witness, but appellant No. 2 in his deposition as A.W. 2 has denied the fact that the postman was examined on his request. An application was filed by the appellants to summon and examine the process servers, but subsequently, the said application was got dismissed as not pressed.
16. The copies of reports of process servers have been filed as Annexure-C.A. 1 to the counter-affidavit. Ratan Lal, process server in his report dated 19.1.2002, has stated on oath that he could not find out Vijay Laxmi and Indu Bhushan on the spot, therefore, the notices were affixed on the door. Another process server in his report dated 9.5.2003, has stated that the notices were affixed at the house as Vijay Laxmi and Indu Bhushan were not available in the house. A perusal of the reports of the process servers clearly shows that the appellant managed to return the notices in collusion with the process servers.
17. From the conduct of the appellant, it is crystal clear that it was his deliberate attempt to avoid the service of notice and to return the notice and registered letter with false and wrong endorsements. The appellant came up with the case that the plaintiff/respondent all the time managed to obtain false report from the process servers and the postman but the facts on the record speak otherwise.
18. The reliance was placed by the appellant on the following cases, i.e., (i) Ramji Das v. Mohan Singh, 1978 ARC 496; (ii) Malkiyat Singh v. Jogendra Singh, 1999 (1) AWC 348 (SC) ; AIR 1998 SC 258 ; and (iii) Balraj Taneja v. Sunil Mohan, 1999 (4) AWC 2.96 (NOC) : AIR 1999 SC 3381, but all these rulings have no application to the facts of the present case.
19. In the result I do not find any merit in the appeal. The appeal is dismissed accordingly.