2007 (8) TMI 818 - HC - Indian Laws

Summary

Issues Involved:
1. Recall application under section 5 of the Limitation Act read with section 151 of Civil Procedure Code for condonation of delay.
2. Sufficiency and validity of service of notice.
3. Application of Chapter VIII, Rule 12 and Chapter XII, Rule 10 of the Allahabad High Court Rules.
4. Compliance with provisions of Order V of the Code of Civil Procedure.
5. Presumption of service under section 114 of the Evidence Act, 1872 and section 27 of the Post Office Act, 1998.

Detailed Analysis:

1. Recall Application and Condonation of Delay:
The petitioner filed a recall application along with an application under section 5 of the Limitation Act and section 151 of the Civil Procedure Code to condone the delay. The recall application sought to recall the judgment and order dated 20.12.2006, arguing that the notices were not properly served on the respondents, leading to an ex parte decision.

2. Sufficiency and Validity of Service of Notice:
The petitioner contended that the notices were not served on the respondents, as the postman did not attempt to serve the summons properly. The respondents argued that the notices were returned with remarks indicating that the recipients did not claim them despite repeated attempts. The court found that the notices were sent to the correct addresses and the respondents deliberately avoided receiving them. The court relied on the post office remarks such as "Baad Samay Ke Vapas" and "PRAPTKARTA KE PAS BAR BAR JANE VA SUCHANA DENE PAR BHI NAHIN MILE ATHAH PRESHAK KO VAPAS," indicating that the respondents were informed but did not collect the notices.

3. Application of Chapter VIII, Rule 12 and Chapter XII, Rule 10 of the Allahabad High Court Rules:
The petitioner argued that Chapter VIII, Rule 12, which provides for service of notice by post or publication, was not followed. However, the court noted that Explanation II to Rule 12 states that a notice sent by registered post shall be deemed to have been served unless received back undelivered. Since the notices were not received back undelivered, they were deemed to have been served. Chapter XII, Rule 10, which applies the provisions of Order V of the Code of Civil Procedure to the service of notice, was also discussed. The court found that the service was sufficient under these rules.

4. Compliance with Provisions of Order V of the Code of Civil Procedure:
The court examined the provisions of Order V, particularly Rules 9, 17, and 20, which deal with the service of summons. The court found that the notices were sent by registered post and the respondents did not claim them despite being informed. The court noted that there was no need for substituted service as the notices were deemed to have been served under the rules. The court also referred to the Supreme Court's decision in Basant Singh v. Roman Catholic Mission, which held that mere irregularities in service do not render the service invalid.

5. Presumption of Service under Section 114 of the Evidence Act, 1872 and Section 27 of the Post Office Act, 1998:
The court relied on the presumption of service under section 114 of the Evidence Act and section 27 of the Post Office Act. The court cited the Supreme Court's decision in P.T. Thomas v. Thomas Job, which held that if a notice is correctly addressed and not claimed despite intimation, it is presumed to be served. The court found that the respondents did not rebut this presumption and did not provide evidence to show that the addresses were incorrect or that the notices were not properly sent.

Conclusion:
The court concluded that the recall application was not maintainable as the notices were deemed to have been served. The respondents deliberately avoided receiving the notices, and there was no evidence to rebut the presumption of service. The court rejected the recall application, stating that the order dated 20.12.2006 was passed on merits and could only be reviewed on limited grounds.