Bombay High Court
The New India Assurance Co.Ltd vs Smt.Nasibunnisa Mohd.Israr Khan And ... on 14 October, 2011
Author: A.S.Oka
Bench: A.S.Oka
1 907 CAF.1979.11.doc
ndm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CIVIL APPLICATION NO. 1979 OF 2011
IN
FIRST APPEAL (stamp) NO. 13185 OF 2011
The New India Assurance Co.Ltd. ... Applicant
Versus
Smt.Nasibunnisa Mohd.Israr Khan and others. ... Respondents
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Mr. S.M.Dange for the Applicant.
Mr. M.M.Sathaye, Advocate - Amicus Curiae.
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CORAM : A.S.OKA, J.
DATE : 14 October, 2011.
th
P.C.:
1 The issue which arises for consideration is "whether a
notice issued by the Court by Registered Post acknowledgment due which is returned back with the remarks of the Postman "intimation posted" and "unclaimed" or "not claimed" can be taken as good a service ?" Since, the issue arises in many matters, I requested ::: Downloaded on - 09/06/2013 17:50:35 ::: 2 907 CAF.1979.11.doc Mr.Sathaye, learned counsel to assist the Court. Accordingly, the learned counsel appearing for the Applicant and Mr.Sathaye, Amicus Curiae, have made detailed submissions.
2 It will be necessary to make a reference to the order of this Court dated 14 June, 2011:
th "Rule, returnable on 26th August, 2011.2.
ig In addition to service of notice through court, advocate for the applicant shall serve private notice by Registered Post A.D. and/or by courier service and/or by hand delivery to the respondents and shall file affidavit of service one week before the returnable date failing which the Application will stand dismissed for non prosecution.
3. There will be ad-interim stay of execution and operation of the impugned judgment and order subject to condition of the applicant depositing the entire compensation amount with the learned Commissioner within a period of eight weeks from today."
3 This is an appeal, which is governed by Section 96 and Order XLI of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"). The appeal will be governed by the provisions of the said Code as well as the Bombay High Court Appellate Side Rules, ::: Downloaded on - 09/06/2013 17:50:35 ::: 3 907 CAF.1979.11.doc 1960.
4 It will be necessary to make a reference to Rule 14 of Order XLI of the said Code. Rule 14 provides that the notice of the date fixed for hearing of the appeal shall be served on the Respondent in the manner provided for service on a defendant of a summons to appear and answer. It further provides that all the provisions applicable to the summons and to the proceedings with reference to service thereof shall apply to the service of such notice. Therefore, as far as service of notice of appeal and/or the application for condonation of delay is concerned, the same will be governed by the provisions of Order V of the said Code.
5 Therefore, a reference will have to be made to Rules 9 and 9-A of Order V of the said Code. The said Rules have been introduced on the statute book by the amendment to the said Code effected from 1 July, 2002. Various modes of service of summons are st provided therein. Rule 9 reads thus:
::: Downloaded on - 09/06/2013 17:50:35 :::4 907 CAF.1979.11.doc "9. Delivery of summons by Court.--(1) Where the defendant resides 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.
(2) The proper officer may be an officer of a Court other than that 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 acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by 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 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 as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of Rule 21 shall not apply.::: Downloaded on - 09/06/2013 17:50:35 :::
5 907 CAF.1979.11.doc (5) When an acknowledgment 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 with an endorsement purporting to have been made by a postal employee or by any person authorised 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 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, prepaid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.
(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 (1)."
6 The basic mode of service of summons is provided under Sub-Rule (1) of Rule 9 of the said Code. It is through a proper officer of the Court or his subordinate or through such courier services as are approved by the Court. As far as this Court and the Courts subordinate to this Court are concerned, no courier services have ::: Downloaded on - 09/06/2013 17:50:35 ::: 6 907 CAF.1979.11.doc been approved as yet. Thus, the basic mode of service of summons under Rule 9 of the said Code is through a proper officer of the Court or his subordinates. Sub-Rule (3) of Rule 9 gives an option of delivering or transmitting a summons by Registered Post acknowledgment due (hereinafter referred to as "Register Post A.D.") or by speed post or by such courier services as are approved by this Court or by any other means of transmission of documents (including fax massage or electronic mail services) as provided by the Rules made by this Court. Sub-Rule (5) of Rule 9 provides that when the acknowledgment or receipt purported to be signed by the defendant or his agent is received by the Court, the same shall be treated as good service. It also provides that a postal article containing summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent has refused to take delivery of the postal article containing summons or has refused to accept summons when tendered, the Court issuing the summons should declare that summons has been ::: Downloaded on - 09/06/2013 17:50:35 ::: 7 907 CAF.1979.11.doc duly served on the defendant. Proviso to Sub-Rule (5) deals with another contingency which arises when the summons is sent by Registered Post A.D., but neither the acknowledgment is received nor the packet is received back. It provides that if the acknowledgment is not received by the Court within a period of thirty days from the date of dispatch, the Court has to make declaration that the summons has been duly served. Rule 9-A contemplates that in addition to service of summons under Rule 9, on the request made by the Plaintiff, the Court may permit the plaintiff to effect service of summons on such defendant. As far as this Court is concerned, there is one provision which requires the notice of the appeal to be served by Registered Post A.D. The said provision is in clause (d) of Sub-Rule (1) of Rule 6 of Chapter VII of the Appellate Side Rules. It provides that if the notice has been served by affixing under Rule 17 of Order V of the said Code, the Advocate or the party concerned should supply postal stamps to cover the postal and registration charges. Thus, in such contingency, when the notice of a Respondent is served by affixing, ::: Downloaded on - 09/06/2013 17:50:35 ::: 8 907 CAF.1979.11.doc the Appellate Side Rules require that a notice should be sent to the concerned Respondent by Registered Post A.D. It must be stated here that Rule 17 of Order V provides for affixing a copy of summons on outer door or on some conspicuous part of the house in which the Defendant ordinarily resides or carries on business or personally works for gain when the Defendant is not found at the time of effecting service. When the officer serving the summons finds that the Defendant is not ordinarily residing or carrying on business or personally working for gain at the address mentioned in the summons, the procedure under Rule 17 cannot be followed.
7 When the notice or summons is issued by Registered Post A.D and the acknowledgment duly signed by the Defendant is received, or if the postal article is received with the endorsement that the same is refused, Sub-Rule (5) of Rule 9 takes care of the situation.
The proviso to Sub-Rule (5) also takes care of the situation when neither the postal article nor the acknowledgment is received back within a period of thirty days. However, neither the said Code nor the ::: Downloaded on - 09/06/2013 17:50:35 ::: 9 907 CAF.1979.11.doc Appellate Side Rules deal with a case where the notice or summons is sent by Registered Post A.D and the postal article is returned back with a remark of the postal authorities that the intimation of the letter has been posted to the addressee, but the same has not been claimed.
8 The learned counsel appearing for the Applicant and the learned Amicus Curiae have relied upon various decisions of this Court as well as the Apex Court. There are many decisions dealing with this issue. One such decision is in the case of Lalmani Ramnath Tiwari Vs. Bhimrao Govind Pawar [2001 (2) Mh.L.J. 342] where an issue arose regarding service of notice by the landlord on the tenant under Section 12 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The Court considered the issue when such notice is returned back with the postal remark "not claimed", whether it can be a proper service of the notice contemplated by Section 12 (2) of the said Act. In this decision, the issue considered was whether presumption of service of notice arises in such a case. There is ::: Downloaded on - 09/06/2013 17:50:35 ::: 10 907 CAF.1979.11.doc another decision in the case of David K.N. Vs. S.R.Chaubey (Chaturvedi) [2003 (4) Bombay Cases Reporter 612]. The issue which is considered therein is regarding the service of notice by a landlord to his tenant. It will be necessary to make a reference to what is held by this Court. In paragraph No.18 of the Judgment, this Court held thus:
"18.
In fact, as far as the contention of the petitioner about his absence in the premises and therefore absence of occasion to receive notice and, on that count presumption being rebutted, a complete answer is to be found in the decision of Apex Court in M/s. Madan & Co.'s case (supra). Mere absence of the tenant in the premises cannot rebut the presumption arising under section 28 of the Bombay General Clauses Act. It is for the tenant to make necessary arrangement to receive the notice addressed to him in his absence at the suit premises and, failure on the part of tenant in that regard cannot enure to his benefit to contend that on account of his absence at the premises, the presumption of service would stand rebutted. It is further to be noted that postal endorsement is not of refusals to receive but to the effect that the letter was not claimed. In other words, there was presumption not only regarding service of the notice but also regarding intimation of a letter having been received in the post office addressed to the tenant and failure to collect the same by the tenant as he was found absent in the premises at the time when postman approaches the premises to deliver the same. The presumption regarding intimation would arise under section 114 of the Evidence Act, as it is observed by the Apex Court, it is general ::: Downloaded on - 09/06/2013 17:50:35 :::
11 907 CAF.1979.11.doc practice for the postman to intimate either orally or in writing about the letter having been received in the post office addressed to the tenant when the tenant is found absent in the premises at the time when the postman approaches to serve the same. Undisputedly, there was no such efforts made by the petitioner either to receive the notice at the address sent to him during his alleged absence nor any explanation forthcoming as to why arrangement was not made to collect the letter from the postal authorities on intimation thereof. Being so, the presumption of service has not been rebutted."
(underline supplied) Thus, this Court invoked presumption under Section 114 of the Indian Evidence Act while dealing with the issue of service of notice by the Landlord to the tenant.
9 In the case of Krishna Ramchandra Jadhav @ Yadav and others Vs. Smt. Shankari B. Ajimal [2005 (4) Mh.L.J. 577], the same issue was considered by this Court. This Court relied upon presumption under Section 27 of the Bombay General Clauses Act and Section 114 of the Evidence Act. In all the aforesaid cases, this Court was dealing with service of notice to the tenant in accordance with Section 106 of the Transfer of Property Act, 1882. It must be ::: Downloaded on - 09/06/2013 17:50:35 ::: 12 907 CAF.1979.11.doc noted that this Court considered the question of invoking presumption under the Indian Evidence Act or Bombay General Clauses Act on the basis of the evidence adduced in the suit. My attention was invited to a decision of the Apex Court in the case of P.T.Thomas Vs. Thomas Job [(2002) 7 Supreme Court Cases 531]. In paragraph Nos.14 and 14, the Apex Court observed thus:
"14. ....... It was he, in fact, who had provided the amount which was deposited on 7-4-2003 and not on 8-4-2003 as assumed by the High Court. It is, thus, seen that the appellant has performed his obligation. He had sent the notice on 30-10-2001 and it was well before the expiry of time on 5-10-2001. Though the notice was correctly addressed and despite the intimation by the post office, the notice was not accepted by the respondent and was returned unserved. In such circumstances, the presumption of law is that the notice has been served on the respondent.
15. The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act, 1898. The requirement of the Section has been complied with in this case. The reasoning of the High Court on this issue is not correct and not in accordance with factual position. In the notice issued, the postman has made the endorsement. This presumption is correct in law. He had given notice and intimation. Nevertheless, the respondent did not receive the notice and it was returned unserved. Therefore, in our view, there is no obligation cast on the appellant to examine the postman as assumed by the High Court. The presumption under Section 114 of the ::: Downloaded on - 09/06/2013 17:50:35 :::
13 907 CAF.1979.11.doc Evidence Act, 1872 operates apart from that under the Post Office Act, 1898."
In this case, the Apex Court was not dealing with service of summons or notice of Court. The Apex Court was dealing with service of notice by the parties to the proceedings. The Apex Court has dealt with the issue of the presumption.
10It will be necessary at this stage to make a reference to the decision of the Apex Court in the case of M/s. Madan and Company Vs. Wazir Jaivir Chand (AIR 1989 Supreme Court 630). It will be necessary to make a reference to what is held by the Apex Court in paragraph No.6 of the decision, which reads thus:
"6. We are of opinion that the conclusion arrived at by the Courts below is correct and should be upheld. It is true that the proviso to Cl. (i) of S. 11(1) and the proviso to S 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through posts. 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 ::: Downloaded on - 09/06/2013 17:50:35 :::
14 907 CAF.1979.11.doc no control over it. It is then presumed to have been delivered to the addressee under S. 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 either case, there is no difficulty, for the acceptance or refusal can 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 assessee'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, an 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"
::: Downloaded on - 09/06/2013 17:50:36 :::15 907 CAF.1979.11.doc 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 B 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 words "served" 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."
(underline supplied) 11 It will be material to note that in the aforesaid decision, the Apex Court has observed that the Indian Post Office Rules do not prescribe any detailed procedure regarding delivery of the registered letters where the postman is unable to contact the addressee or a ::: Downloaded on - 09/06/2013 17:50:36 ::: 16 907 CAF.1979.11.doc person who is authorized to receive the letter. The Apex Court noted the general practice that after making an attempt to deliver the letter on one or two days, the Postman returns the letter to the sender. The Apex Court held that the responsibility of a postman cannot be equated to that of a process server (Court bailiff) entrusted with the responsibility of serving the summons of a Court under Order V of the Code.
12 As far as the procedure for service of summons is concerned, Rule 16 of Order V of the said Code is relevant which reads thus:
"16. Person served to sign acknowledgment.- Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other persons on his behalf, he shall required the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons."
13 Rule 18 requires the serving officer to submit a return in the form of endorsement stating therein the particulars of service. Rule ::: Downloaded on - 09/06/2013 17:50:36 ::: 17 907 CAF.1979.11.doc 17 which deals with service by affixing is already dealt with earlier. If the summons is served by affixing as per the Rule 17 and if the return is not verified on affidavit by serving officer, the Court is under an obligation to examine the serving officer on oath. If the return is verified on affidavit by the serving officer, the examination of the serving officer is not mandatory, but it is at the discretion of the Court.
Only after examination as aforesaid and after making such further inquiry in the matter as it thinks fit, the Court can either declare that summons has been duly served or may order fresh service. The officer entrusted with the responsibility of service of summons is under an obligation to file a return contemplated by Rule 18 of Order V which is not the requirement of the Rules of the Postal department. If an officer of the Court makes an incorrect or false statement in the return, the Court can initiate action against him. That is why the Apex Court has made a distinction between the responsibilities of a process server and a postman. As far as process server is concerned, he is always an officer of the Court (except in the city of Bombay where service is ::: Downloaded on - 09/06/2013 17:50:36 ::: 18 907 CAF.1979.11.doc effected through the bailiffs attached to the office of the Sheriff). He is under an obligation to make a return making endorsement as required by Rule 18. In case defendant refuses to accept or declines to accept the summons, he is bound to file a return verified by an affidavit. If he does not verify the return on the affidavit, the Rules mandate that the Court shall examine him on oath.
14As pointed out earlier, when summons or notice is issued by Registered Post A.D. by invoking Rule 9 of Order V, there is no specific provision either in the said Code or in the Appellate Side Rules which deals with the contingency where the postal article containing the summons or notice is returned with remark "intimation posted" and "unclaimed" or "not claimed". The Sub-Rule (5) of the Rule 9 of Order V which provides that in certain cases the Court Shall declare that the summons has been duly served significantly does not cover a case where the summons or notice issued by Registered Post A.D. is returned with remark "intimation posted" and "unclaimed" or "not claimed". Now the question is whether in such a case the presumption ::: Downloaded on - 09/06/2013 17:50:36 ::: 19 907 CAF.1979.11.doc under Section 27 of the General Clauses Act or Section 114 of the Evidence Act can be invoked. Such presumption is held to be a rebuttable presumption. Essentially a presumption is a rule of evidence and the question of invoking presumption arises only after parties adduce evidence. The presumption under both the sections is a rebuttable presumption. The presumption is a rule of evidence which can be applied only after the parties adduce evidence inasmuch as only at that stage, there is an opportunity to rebut the presumption.
When it comes to service of summons or notice as required by the said Code, at the stage of service of summons or notice, the Court cannot invoke the presumption either under Section 27 of the General Clauses Act or under Section 114 of the Evidence Act and hold that the service effected in such manner is a good service. The decisions which hold such service as "good service" are rendered in relation to the service of statutory notice by the landlord to the tenant or notices exchanged between the parties. In these cases, such presumption was invoked after the parties adduced evidence. Therefore, when ::: Downloaded on - 09/06/2013 17:50:36 ::: 20 907 CAF.1979.11.doc summons or notice of the Court issued by Registered Post A.D. is returned with a remark "intimation posted" and "not claimed" or "unclaimed", the same cannot be accepted as a good service. The reason is that at that stage there is no scope to invoke the rebuttable presumption. As pointed out earlier, apart from the fact that the presumption as aforesaid is a rule of evidence, even assuming that there is a proper service of an intimation, the postal authorities do not keep the postal articles in the post office for more than few days and the same are returned to the sender. In case of the Defendant who is away for more than few days, even if he visits the post office for collecting the postal article, he will not get the postal article if it is already returned. It is pertinent to note that while substituting the Rule 9 of Order V of the said Code, though the legislature has expressly provided that if a postal article containing the summons is received back with an endorsement of refusal, the same shall be treated as good service, there is no such provision made in a case where summons or notice issued by Registered Post A.D. is returned with a ::: Downloaded on - 09/06/2013 17:50:36 ::: 21 907 CAF.1979.11.doc remark "intimation posted" and "not claimed" or "unclaimed".
Therefore, in such a case, the service of summons or Court notice cannot be treated as a good service. The settled law of invoking presumption of service of notice by landlord to the tenant will not apply to service of summons or notice.
15 There is one more aspect of the matter. Noticing the large filing of matters in this Court and the shortage of hands in the office, this Court started practice of directing the Appellant or the Applicant to serve private notice in addition to the service through Court. Such orders are passed essentially to facilitate early service of notice as it is a matter of common experience that due to large number of matters in which notices are issued by this Court, there is a delay in dispatching the notices. Such private service is not contemplated by either the said Code or the Appellate Side Rules. Rule 9A of Order V will not apply in such a case in as much as the said Rule contemplates handing over the summons of the Court to the Plaintiff for effecting service. The said Rule reads thus:
::: Downloaded on - 09/06/2013 17:50:36 :::22 907 CAF.1979.11.doc "9-A. Summons given to the plaintiff for service.--(1) The Court may, in addition to the service of summons under rule, on the application of the plaintiff for the issue of a summons for the appearance of the defendant, permit such plaintiff to effect service of such summons on such defendant and shall, in such a case, deliver the summons to such plaintiff for service.
(2) The service of such summons shall be effected by or on behalf of such plaintiff by delivering or tendering to the defendant personally a copy thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court or by such mode of service as is referred to in sub-rule (3) of Rule 9.
(3) The provisions of Rules 16 and 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving officer. (4) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgment of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant.]"
16 The Sub-Rule (4) of Rule 9A provides that refusal of service of summons cannot be accepted as good service and the summons is required to be reissued in such a case. Under the said Rule 9A ,If service is attempted to be effected by registered post A.D, Sub-Rule 5 of Rule 9 is not applicable and in case of refusal it is not ::: Downloaded on - 09/06/2013 17:50:36 ::: 23 907 CAF.1979.11.doc mandatory that service should be accepted as a good service. A provision like Sub-Rule (5) of Rule 9 has not been incorporated in Rule 9-A. When service is privately effected on the basis of the order of the Court permitting private service in addition to service through Court, it is always a discretion of the Court to accept whether service of private notice should be treated as a good service or not. While exercising the discretion, no doubt the Court will be guided by the provisions of Order V of the said Code. But it is not mandatory in every case that service of notice effected privately should be always treated as a good service.
The Court will have to consider various factors before accepting service effected privately as a good service.
17 Before parting with the order, I must record appreciation for the assistance rendered by Mr.Sathaye, Amicus Curiae.
18 In the present case, private notice issued by Registered Post A.D. is received back with the remark "unclaimed". Therefore, in the present case, the service of notice to the Respondent Nos.1 to 5 ::: Downloaded on - 09/06/2013 17:50:36 ::: 24 907 CAF.1979.11.doc cannot be accepted as a good service. It must be noted here that the notice issued through Court at the same address has been returned unserved with the remark of the bailiff that the Respondent Nos.1 to 5 are not found and even their addresses are not traced out. This also shows how it is unsafe to rely upon the endorsement of "unclaimed"
made by the postman on the postal articles.
19As far as the Respondent No.6 is concerned, considering the statement in the affidavit of service and signed postal acknowledgment, the service of notice effected privately will have to be accepted as good service.
20 Time of eight weeks is granted to the Applicant to take appropriate steps for effecting service of notice to serve Respondent Nos.1 to 5. If proper steps are not taken within the stipulated time, this application shall stand dismissed for non-prosecution without further reference to the Court.
[ A.S.OKA, J ] ::: Downloaded on - 09/06/2013 17:50:36 :::