1984 (8) TMI 361 - HC - Indian Laws

Summary

Issues Involved:
1. Sufficiency of service of notice of the final decree proceeding on the petitioner through the process server.
2. Proper service of notice of the final decree proceeding on the petitioner by registered post.
3. Service of notice by the civil Court commissioner before making the survey of the subject matter of partition.
4. Knowledge of the final decree proceeding by the petitioner due to his participation in Misc. Case No. 45 of 1976.

Detailed Analysis:

1. Sufficiency of Service of Notice Through Process Server:
The petitioner argued that the service of notice by affixture was insufficient as he was in Calcutta. The Court found that the process server did not effect personal service of the notice as required by Order 5, Rule 12 of the Civil Procedure Code (CPC). The notice was affixed as per Rule 17, but the sufficiency of this service was not accepted until the postal acknowledgment came back after refusal. The Court emphasized that the onus of proof shifted to the opposite party once the petitioner denied service of notice. The opposite party failed to prove the essential ingredients of Order 5, Rule 17 by not examining the process server or providing necessary evidence. Therefore, it was held that there was no sufficient service of notice of the final decree proceeding on the petitioner.

2. Proper Service of Notice by Registered Post:
The petitioner denied receiving or refusing the notice by registered post. The Court noted that the postal cover with the endorsement by the Postman was not proved and admitted into evidence. The Postman was also not examined. According to Order 5, Rule 10 and Rule 19A of the CPC, proper service by registered post requires proof that the notice was prepaid, properly addressed, and duly sent with acknowledgment due. The absence of such proof led the Court to conclude that the declaration of the Court regarding the sufficiency of service by registered post was not based on evidence. Consequently, the finding that there was proper service of notice by registered post was not accepted.

3. Service of Notice by Civil Court Commissioner:
There was no evidence on record to show that the civil Court commissioner served notice on the petitioner before making the survey. The commissioner was not examined, and no documents were proved or exhibited to support the claim. Thus, the Court could not accept the finding that the petitioner was aware of the final decree proceeding through the civil Court commissioner's notice.

4. Knowledge of Final Decree Proceeding Due to Participation in Misc. Case No. 45 of 1976:
The petitioner was appointed as a receiver in the original suit, and the opposite party alleged that he did not deliver paddy, leading to Misc. Case No. 45 of 1976. The Court found no evidence that the petitioner was aware of the final decree proceeding while contesting the Misc. Case. The records of Misc. Case No. 45 of 1976 were not brought on record, and the petitioner's attention was not drawn to any specific statements during cross-examination. The Court emphasized that no adverse order could be passed without notice to a party, adhering to the principles of natural justice. Therefore, the finding that the petitioner had knowledge of the final decree proceeding due to his participation in Misc. Case No. 45 of 1976 was not sustained.

Conclusion:
The Court held that there was no service of notice of the final decree proceeding on the petitioner, and he had no knowledge thereof. Consequently, the ex parte final decree was set aside, subject to the payment of costs of Rs. 150 by the petitioner to the opposite party in the trial court. The revision was accordingly allowed.