Delhi District Court
Samuel Watharkar vs Suryakant on 24 January, 2015
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
CS No. 461/12
Samuel Watharkar
..... Plaintiff
Vs.
Suryakant
..... Defendant
O R D E R
1. Vide this order I shall dispose of an application u/o 9 rule 13 CPC moved by the applicant/ defendant.
2. By way of this application, the defendant is seeking setting aside the exparte judgment and decree dated 29.05.2013 on the ground that he was not served with the summons and he came to know about the passing of the exparte judgment and decree when the bailiff came to his shop on 15.10.2013 for taking the possession of the suit property. It is alleged that exparte judgment and decree dated 29.05.2013 has been obtained by the plaintiff by playing fraud and misrepresentation as the defendant was never served with the summons. It is further contended that the concerned postman never met the defendant or his family members and on the alleged date of CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 1 of 14 service of summons i.e. on 12.11.2012 and 22.12.2012, the defendant was out of station. The defendant has also contended that the plaintiff has never informed about the pendency of the suit in the criminal proceedings initiated by him against the plaintiff for trespassing the suit property. It is further contended that the plaintiff has not taken the steps for service of defendant in compliance of court orders as summons were not issued through Ld. District Judge, Ghaziabad, UP. The defendant has thus prayed for setting aside the exparte order dated 04.01.2013 and exparte judgment and decree dated 29.05.2013.
3. The plaintiff has contested the application by filing reply contending that defendant refused to accept the summons and therefore, he was rightly proceeded exparte vide order dated 04.01.2013. The defendant had full knowledge of the present case and he chose not to appear in the present case and as such the defendant cannot be allowed to take advantage of his own wrongs. The plaintiff has prayed for dismissal of the application.
4. The present application was earlier disposed of vide order dated 01.05.2014 with the observations that since the summons were refused by the defendant as per report of postal authority, there is presumption of service, however the said presumption is rebuttable by leading evidence and hence evidence is required by the defendant to rebut the presumption of service. The defendant was required to lead CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 2 of 14 the evidence on the application to rebut the presumption of service.
5. Thereafter, in support of application, the defendant examined himself as DW1, his wife Smt. Seema Watharkar as DW2, his son Sh. Shashank Watharkar as DW3, his servant Sh. Surender Singh Pundel as DW4 and Sh. Narendervir Singh, the postman as DW6.
6. The plaintiff/nonapplicant did not lead any evidence on the application.
7. I have heard the Ld. Counsel for the parties and perused the record carefully.
8. Perusal of the record reveals that summons of the suit were directed to be issued to the defendant vide order dated 16.10.2012 on PF and Speed Post and again vide order dated 01.12.2012 on PF, courier as well as through Ld. District Judge, Ghaziabad, UP. The speed post issued to the defendant received back with the report of "refusal" dated 12.11.2012 and 22.12.2012. On the basis of said report, the Ld. Predecessor took it deemed service and when the defendant failed to appear in the court, proceeded the defendant exparte vide order dated 04.01.2013. Consequently, the suit was decreed exparte in favour of the plaintiff vide order dated 29.05.2013.
CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 3 of 14
9. By way of present application, the defendant contends that the concerned process server or postman never met the defendant or his family members and the defendant or his family members never refused to accept the summons. It is alleged that the plaintiff has obtained the false report of refusal in connivance with the postman. It is also contended that the defendant on the alleged date of service i.e. on 12.11.2012 and 22.12.2012 was out of station.
10. The defendant, who has examined himself as DW1 in support of application, in his examinationinchief has almost deposed on the similar lines as averred in the application. It is relevant here to note that that in para 8 (c) of the application U/o 9 Rule 13 CPC, the defendant had taken a specific stand that on the relevant dates i.e 12.11.2012 and 22.12.2012, when the service of summons was allegedly effected on him, he was out of station. However, in para 8
(c) of his affidavit Ex. DW1/A towards examinationinchief, wherein he has almost reiterated the averments of the application, there is significant shift in the stand taken by the defendant in para 8(c) of the affidavit from the stand taken in para 8 (c) of the application. The defendant has omitted to mention in para 8 (c) of the affidavit that he was out of station on the relevant dates i.e. 12.112012 and 22.12.2012 when the postman visited his house to serve the summons. From this substantial and deliberate omission by the defendant in his affidavit, CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 4 of 14 the claim of the defendant that he was out of station on 12.11.2012 and 22.12.2012 is not proved.
11. The defendant has also examined his wife Smt. Seema Watharkar as DW2 who in his examinationinchief stated that she never met any postman or process server on 12.11.2012 or 22.12.2012 who allegedly came to her house to deliver the summons. She further deposed that she never refused to accept the summons vide refusal report dated 12.11.2012 and 22.12.2012 and the said report has been filed by the plaintiff in connivance with the post man.
12. In her crossexamination, DW2 stated that on 22.12.2012 she was at home and on the said date, her son and servant were also present in the home. Voluntarily, she stated that her husband was not in the home as he had left for mandi at Ghazipur. She denied the suggestion that postman had visited their house on 121.11.2012 and 22.12.2012 to deliver the summons.
13. DW3 Shashank Watharkar who is son of the defendant in his examination in chief has deposed on the similar lines as deposed by DW2. But, in his crossexamination DW3 categorically stated that he was present at his house on 12.11.2012 and on the said date apart from him, his mother, servant and his father were present. He again categorically stated that on 22.12.2012, he was present in his house and on the said date also his mother, father and their servant were CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 5 of 14 present in the house. He further admitted that since they have servant therefore when there is bell, often it is servant who opens the door.
14. DW4 Sh. Surender Singh Pundel, who is servant of defendant in his examination in chief has deposed on the similar lines as deposed by DW2 and DW3 in their examination in chief. In the crossexamination, DW4 stated that he was present in the house on 12.11.2012 and 22.12.2012. He denied the suggestion that the postman has visited the house on 12.11.2012 and 22.12.2012 to deliver the summons. He further denied the suggestion that the applicant refused the summons brought by the postman in his presence. He stated that on 12.11.2012 and 22.12.2012, Smt. Seema Watharkar, her son Shashank and he was present in the house. He further stated that Sh. Suryakant was not in the house on the said two dates.
15. The aforesaid evidence of DWs shows contradiction in their statement regarding presence of defendant at his house on 12.11.2012 and 22.12.2012. DW3 who is son of the defendant has categorically admitted in his crossexamination that the defendant was present in the house on 12.11.2012 and 22.12.2012 when the postman visited the house to deliver the summons, whereas DW1 who is defendant himself, DW2 and DW4 have denied the same.
16. Another witness examined by defendant as DW6 is Sh. Narendervir Singh, the postman who prepared the report of CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 6 of 14 refusal. He deposed in his examination in chief that he is working as a postman since 1983. After seeing the court records, he identified his signatures on refusal report dated 12.11.2011 on speed post Ex. DW6/1, registered AD Ex. DW6/2 and refusal report dated 22.12.2012 on speed post Ex. DW6/3 and admitted that same have been signed by him. He categorically stated that applicant had refused to take the delivery of summons on 12.11.2012 and 22.12.2012. He further stated that the respondent is residing on the second floor of KA53, Kaushambi, Ghaziabad and there was one more person when he visited the premises of applicant. He further stated that he had visited the premises of applicant once for service of speed post and registered AD on 12.11.2012.
17. From the aforesaid statement of DW6, the postman examined by the applicant/defendant himself, nothing material could be extracted to demolish his testimony that he had visited the premises of the defendant for service of summons through speed post on 12.11.2012 and 22.12.2012. It stands proved that on the said two dates summons were refused by the applicant and there was one more person in the house of the defendant. The said fact is corroborated from the statement of DW3 who stated in his crossexamination that it is the servant who often opens the door whenever there is bell. The testimony of DW6 has been consistent and could not be shaken. CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 7 of 14 Though, Ld. Counsel for defendant has put a suggestion to the witness that if the addressee refused to accept the speed post then same has to be put in the premises of the addressee, the witness stated that there is no such procedure. He further stated that he has not communicated the factum of refusal of the post by the addressee to the occupants at ground floor and first floor or in the office of RWA of the said locality.
18. However, the Ld. Counsel for defendant failed to show any procedure that when the addressee refuses to accept the post then same has to be intimated to the neighbours or in the office of RWA of the locality by the postman and same has not been followed. There was no occasion for the postman to intimate the neighbours about the refusal of summons by the defendant. Neither there is any such procedure nor same has been brought on record by the defendant/applicant.
19. It is also to be noted that Ld. Counsel for defendant has not put any single suggestion to DW6 that report of refusal dated 12.11.2012 and 22.12.2012 has been prepared by him in connivance with the plaintiff, which has been the consistent stand of the defendant in the application as well as in the evidence. In the absence of any such suggestion to DW6, the contention of the defendant that the refusal report dated 12.11.2012 and 22.12.2012 has been obtained by CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 8 of 14 the plaintiff in connivance with the postman remained unsubstantiated.
20. It is a settled law that if summons issued by registered post bearing correct address of the defendant and is returned by the postal authorities with the report of "refusal", there is presumption that the addressee received the summons sent by the registered post. Such presumption is available under Section 27 General Clauses Act as also under Section 114 Illustration (f) of the Indian Evidence Act, 1872. However, the said presumption is rebuttable on consideration of evidence of impeccable character and not by mere bald averments or assertions. It is so held by the Hon'ble Apex Court in Parimal Vs. Veena @ Bharti, Civil Appeal No. 1467 of 2011. Similar view was taken by the Hon'ble Apex Court in Gujarat Electricity Board & Anr. Vs. Atmaram Sungomal Poshani, AIR 1989 SC 1433 wherein it has been held that, "There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the 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 CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 9 of 14 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."
21. As such, since there is presumption of service on the report of refusal by the postal authority and same is rebuttable and therefore the defendant was required to rebut the said presumption by leading cogent evidence that he was never served with the summons or that postman/process server never visited his premises to deliver the summons and he or his family member never refused to accept the summons or that the plaintiff obtained the report of refusal in collusion with the postman, but the defendant has miserably failed to prove the same.
22. Even the stand of the defendant suffers from inconsistency. As discussed herein above, in the application, the defendant has taken a stand that on the relevant dates i..e 12.11.2012 and 22.12.2012 when the alleged service of summons has been effected on him, he was out of station. However, while appearing as a witness, the defendant gave up the said stand and remained conspicuously silent regarding he being out of station on the said two dates. Further, DW3 who is the son of the defendant has categorically stated in his crossexamination that his father was present in the house on the aforesaid two dates. Furthermore, the defendant has failed to CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 10 of 14 extract anything in his favour from the statement of DW6, the postman who categorically stated in his evidence that the defendant has refused to accept the summons vide his refusal report Ex. PW6/1 and Ex. PW6/3. The defendant though has alleged that the said report has been obtained by the plaintiff in connivance with the post man, but as discussed herein above, not a single suggestion was given to DW6 in this regard and this contention of the defendant remained unsubstantiated.
23. Though, Ld. Counsel for defendant argued that the plaintiff has not complied the court order by serving the defendant through Ld. District Judge, Ghaziabad and non compliance of the order would make the proceedings vitiated. However, I do not find any merit in this argument of Ld. Counsel for defendant. Vide order dated 01.12.2012, the plaintiff was also directed to serve the defendant through Ld. District Judge, Ghaziabad. The defendant has refused to accept the summons sent through speed post and on the basis of said refusal report by postal authority, the court took it deemed service and the onus was upon the defendant to rebut the presumption of service which the defendant has miserably failed to prove. Therefore, the defendant cannot justify his refusal on the ground that the summons were not sent through Ld. District Judge, Ghaziabad when summons sent through speed post were refused by him.
CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 11 of 14
24. It is also contended in the application that as per section 101 and 103 of Indian Evidence Act, the burden of proof of facts rest on the party who substantially asserts it and not on the party who denies it. The Ld. Counsel for defendant would argue that burden of proof that the defendant has refused to accept the summons was on the plaintiff which he has failed to prove and not on the defendant who has denied the same. However, this contention of the Ld. Counsel for defendant is misconceived and contrary to the settled preposition of law as held by the the Hon'ble Apex Court in Parimal Vs. Veena @ Bharti (cited supra), wherein it has been held that, "The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue."
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25. The burden to rebut the presumption of service lies on the party challenging the factum of service as held by the Hon'ble Apex Court in Gujarat Electricity Board Vs. Atmaram Sungomal Poshani (supra). Since the defendant has challenged the report of refusal and claimed that he was not served with the summons, therefore onus was upon the defendant to prove the same.
26. Though the Ld. Counsel for defendant has relied upon the judgment of Hon'ble Supreme Court in Sushil Kumar Sabharwal Vs. Gurpreet Singh & Ors. 2002 (3) Supreme 668 wherein the statement of process server regarding service upon the appellant was discarded by the Hon'ble Apex Court. However, facts in the said case are distinguishable from the facts in the present case. In the said case, there were several infirmities and lapses on the part of the process server and there was discrepancy in his statement and report regarding affixation of summons. But in the present case, the statement of the postman remained consistent and defendant failed to shake his testimony and that he had not visited the premises of the defendant or that he has filed a false report in connivance with the plaintiff.
27. In the entire facts and circumstances of the case, the defendant has miserably failed to prove that postman/process server did not visit his house on 12.11.2012 and 22.12.2012 to deliver the summons or that the postman has given the false report in connivance CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 13 of 14 with the plaintiff or that he was not aware of the pendency of the suit. The defendant has miserably failed to rebut the presumption of service and thus failed to show sufficient ground to set aside the judgment and decree dated 29.05.2013. Hence, the application moved by the defendant u/o 9 rule 13 CPC is devoid of any merit and accordingly same is hereby dismissed.
Announced in the open Court (Balwant Rai Bansal)
on 24thJanuary, 2015 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 461/12
Samuel Watharkar Vs. Suryakant Page 14 of 14
CS No. 461/12
Samuel Watharkar Vs. Suryakant
24.01.2015
Present: None.
Vide my separate order of even date, the application moved by the defendant u/o 9 rule 13 CPC is dismissed.
File be consigned to Record Room.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 24.01.2015 CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 15 of 14