Holding

Service of notice of appeal is mandatory through the court’s process, and endorsements by process servers are sufficient to establish such service.

Summary

Munna Lal filed a suit for specific performance of a contract for sale of land, which was dismissed by the trial court. The appeal against the dismissal was allowed ex‑parte by the first appellate court, and the appellant sought to set aside the ex‑parte decree under Order XLI Rule 21 of the CPC. The appellant contended that the notice of appeal had not been validly served, alleging that the process server’s reports and the postal endorsement were erroneous and that there was no refusal of delivery. The High Court, relying on the process servers’ endorsements and the presumption of service under Order V Rule 9, held that service of notice through the court’s process was mandatory and sufficient. The Supreme Court affirmed that the endorsements were adequate, no material was produced to rebut the presumption, and therefore the appeal was dismissed.

Issues considered

Whether service of notice of appeal under Order XLI Rule 21 requires mandatory service through the court’s process as per Order V Rule 9 of the CPC.
Whether an endorsement by the postal department indicating refusal of delivery is necessary to establish service of the notice.
Whether the presumption of service can be rebutted by the appellant and who bears the burden of proof.

Legislation cited

Code of Civil Procedure, 1908s. Order V Rule 9, s. Order XLI Rule 14, s. Order XLI Rule 21
Urban Land Ceiling Act, 1976

Subjects

service of noticeappealOrder V Rule 9Order XLI Rule 21ex‑parte decreespecific performancepresumption of serviceprocess server

Judgment

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
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.
c
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
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.
F

Dr. R.G. Padia and Pradeep Mishra for the Respondents.

The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT,J. Leave granted.
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 performance
B of the contract dated 6th March, 1992. The agreement was allegedly executed
by Smt. Krishna Devi, mother of the appellant and respondent no.2 who were
the appellants before the High Court. The said Smt. Krishna Devi expired
during the pendency of the suit before the Trial Court. According to the
plaintiff, out of the total sale consideration of Rupees one lakh, Rs.25,000/-
was given on 2nd March, 1992 and another sum of Rs.15,000/- was given on
C 6th March, 1992. It was stipulated in the agreement that the sale deed shall
be executed by the Vendor after she obtained permission from the authorities
under the Urban Land Ceiling Act, 1976 (in short 'ULC Act'). As Vendor
failed to execute the sale deed the suit for specific performance was filed. The
suit was dismissed by the Trial Court on 3rd August, 2002. The judgment
D and decree were challenged by respondent no. I by filing Civil Appeal no. I091
2002. The said appeal was allowed as ex-parte on I Ith July, 2003 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 Courts below.
The said application was filed in terms of Order XLI Rule 21 CPC which was
rejected by the First Appellate Court.
E
3. The only ground which was urged in support of the appeal/application
as the case may be before the First Appellate Court and the High Court was
that there was no service of notice through process server or by registered
post. It was contended that the information regarding decision of the appeal
F came to knowledge of the appellant before the High Court on 28th July, 2003
when the notice of caveat application filed before the High Court by respondent
no. I was received. It was averred that the reports of the process server were
r.ot correct. The notice by registered post was not served. In fact, there was
no refusal as was made out by the plaintiff-respondent no. I. The postman
who was examined clearly stated that there was no refusal by the appellant
G and the present respondent no.2.

4. The First Appellate Court analysed the factual position and placing
reliance on the decision of this Court in State of MP. v. Hirata! and Ors.,
[1996] 7 SCC 523, held that there was valid service of the notice sent by
registered post. Further the evidence of the process server clearly established
H that notice has been served. The High Court dismissed the appeal finding
j
INDU BHUSHANv. MUNNULAL [PASAYAT,J.) 241
that there was valid service of the notice regarding hearing of the appeal A
before First Appellate Court.

5. In support of the appeal, learned counsel for the appellant submitted
that the First Appellate Court and the High Court clearly proceeded on
erroneous presumption that the appellant and respondent no.2 had refused
to receive the notice. The postman's evidence was not to the effect of any B
refusal. In fact, the evidence clearly established that at no point of time
postman met the appellant. The High Court relied on decision which related
to refusal and those decisions were not clearly applicable to the facts of the
present case.
)
6. The learned counsel for the appellant further submitted that the C
decision in Hiralal's case (supra) has no application to a case where there
is no definite material of refusal. The decision in the said case was on the
basis of the office report indicating that the noticee was avoiding to receive
the notice. In that context this Court held that the notice has to be treated
as sufficient. Further the decision relied upon by the High Court i.e. Hirata/ 's D
case (supra) and Gujarat Electricity Board v. Atma Ram, AIR (1989) SC 1433
have no application to the facts of the present case. It was held by this Court
that theie is presumption of service of letters sent by registered cover if the
same is returned by postal 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 E
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 onus lies on the party challenging the factum of
service.

7. In response, learned counsel for the respondent no. I submitted that F
-~ the First Appellate Court and the High Court found that the process server's
reports clearly indicated the service of the notice and about the knowledge
of the appellant and respondent no.2 about the pendency of the appeal. It
was, therefore, submitted that the High Court's judgment does not warrant
interference. G
8. In the instant case, the postal endorsement is not to the effect that
the addressee has refused to accept the letter tendered. Similarly, in Mis
Madan and Company v. Wazir Jaivir Chandra, AIR (1989) SC 630 the effect
of endors.ements such as "not found", "not in station" or "addressee has left"
was considered. The service of notice of appeal is required to be done under H
242 SUPREME COURT REPORTS (2007] 2 S.C.R.

A Order XU Rule 14 CPC. The same reads as follows:
"Publication and service of notice of day for hearing appeal- (I)
Notice of the day fxed under rule I2 shall be affixed in the Appellate
Court house and a like notice shall be sent by the Appellate Court to
the Court from whose decree the appeal is preferred, and shall be
B
served on the respondent or on his pleader in the Appellate Court in
the manner provided for the service on a defendant of a summons to
appear and answer; and all the provisions applicable to such summons,
and to proceedings with reference to the service thereof, shall apply
to the service of such notice.
c (2) Appellate Court may itself cause notice to be served- Instead of
sending the notice to the Court from whose decree the appeal is
preferred, the Appellate Court may itself cause the notice to be
served on the respondent or his pleader under the provisions above
referred to.
D
(3) The notice to be served on the respondent shall be accompanied
by a copy of the memorandum of appeal.

(4) Notwithstanding anything to the contrary contained in sub-rule
(I), it shall not be necessary to serve notice of any proceeding
E incidental to an appeal on any respondent other than a person
impleaded for the first time in the Appellate Court, unless he has
appeared and filed an address for the service in the Court of first
instance or has appeared in the appeal.

(5) Nothing in sub-rule (4) shall bar the respondent referred to in the
F appeal from defending it."

9. Order V Rule 9 of CPC refers to service of summons. The said J..
provision reads as follows:

"9. Delivery of summons by Court. (I) Where the defendant resides
G within the jurisdiction of the Court in which the suit is instituted, or
has an agent resident within that jurisdiction who is empowered to
accept the service of the summons, the summons shall, unless the
Court otherwise directs, be delivered or sent either to the proper
officer to be served by him or one of his subordinates or to such
courier services as are approved by the Court.
H
l
INDUBHUSHANv. MUNNULAL [PASAYAT,J.] 243

(2) The proper officer may be an officer of a Court other than that A
in which the suit is instituted, and, where he is such an officer, the
summons may be sent to him in such manner as the Court may direct.

(3) The services of summons may be made by delivering or transmitting
a copy thereof by registered post acknowledgement due, addressed
to the defendant or his agent empowered to accept the service or by B
speed post or by such courier services as are approved by the High
Court or by the Court referred to in sub-rule ( 1) or by any other means
of transmission of documents (including fax message or electronic
mail service) provided by the rules made by the High Court :
)
Provided that the service of summons under this sub-rule shall be c
made at the expenses of the plaintiff.

(4) Notwithstanding anything contained in sub-rule (1), where a
defendant resides outside the jurisdiction of the Court in which the
suit is instituted, and the Court directs that the service of summons
on that defendant may be made by such mode of service of summons D
as is referred to in sub-rule (3) (except by registered post
acknowledgment due), the provisions of rule 21 shall not apply.

(S) When an acknowledgement or any other receipt purporting to be
·~
signed by the defendant or his agent is received by the Court or
postal article containing the summons is received back by the Court E
with an endorsement purporting to have been made by a postal
employee or by 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 in sub-rule (3) when tendered F
or transmitted to him, the Court issuing the summons shall declare
that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, pre-paid
and duly sent by registered post acknowledgement due, the declaration
referred to in this sub-rule shall be made notwithstanding the fact that G
the acknowledgement having been lost or mislead, or for any other
reason, has not been received by the Court within thirty days from
the date of issue of summons.
i
(6) The High Court or the District Judge, as the case may be, shall
prepare a panel of courier agencies for the purposes of sub-rule(!)." H
244 SUPREME COURT REPORTS [2007] 2 S.C.R.

A I0. A bare perusal of Order V Rule 9 clearly shows that service
through process of Court is mandatory. This position is clear from the
use of 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 it was contended by learned counsel
B 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.

C 11. Above being the position, the conclusions arrived at by the First
Appellate Court as affirmed by the High Court do not suffer from any infirmity
to warrant interference.

12. The appeal fails and is thus dismissed. There will be no order as
to costs.
D
S.K.S. Appeal dismissed.