Document Fragment View

Matching Fragments

4. In response, counsel for the plaintiff has argued for dismissing of the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) by urging the following grounds:-

(i) The postal cover does indeed show the endorsement of refusal given by the postman who is an independent and a neutral person and such presumption of refusal on account of endorsement of refusal could only have been set aside if the applicant/defendant no.4 had summoned someone from the postal department and importantly the postman who made the endorsement of refusal on 28.5.2009.

(iii) Thirdly, it is argued on behalf of the plaintiff/non-applicant that application is liable to be dismissed in view of the first proviso to Order IX Rule 13 CPC which states that even if there is irregularity in service but if the applicant under Order IX Rule 13 CPC is otherwise aware of/having knowledge of the suit having been filed, but still does not appear, the application under Order IX Rule 13 CPC should be dismissed. Reliance in this regard is placed upon the direct observations of the Supreme Court in the judgment in the case of Parimal Vs. Veena alias Bharti (2011) 3 SCC 545 wherein the Supreme Court has observed that if there is a report of refusal by a postman, the onus in this regard to prove there was no refusal is upon the person who alleges that there was no refusal and that such onus can only be discharged on a person being summoned from the postal department i.e the postman to show that there was no refusal by the applicant in the application under Order IX Rule 13 CPC. The relevant paras of this judgment of the Supreme Court in the case of Parimal (supra) which are relied upon are paras 11, 12, 13, 17, 18, 19, 22, 23, 26 and 27. These paras will also cover the fourth argument urged on behalf of the plaintiff/non- applicant. These paras read as under:-

23. More so, it is nobody's case that Respondent/wife made any attempt to establish that there had been a fraud or collusion between the Appellant and the postman. Not a single document had been summoned from the post office. No attempt has been made by the Respondent/wife to examine the postman. It is nobody's case that the National Herald daily newspaper published from Delhi did not have a wide circulation in Delhi or in the area where the Respondent/wife was residing with her brother. In such a fact-situation, the impugned order of the High Court becomes liable to be set aside.

7. The crux of the matter is that whether the applicant/defendant no.4 has or has not refused service as found in terms of the endorsement of the postman dated 28.5.2009 on the postal article containing the summons which were issued by this Court for 7.7.2009. In my opinion, in view of the direct ratio of the judgment of the Supreme Court in the case of Parimal (supra) and which states that once there is an endorsement of refusal, it is necessary for the person who wants to rebut the presumption of service, to summon the postman, but since the applicant/defendant no.4 has only filed her self-serving affidavit of not refusing and without calling the concerned postman, the onus of proof which was upon the applicant/defendant no.4 in terms of the issue framed on 26.11.2012 cannot be said to have been discharged by the applicant/defendant no.4 especially in view of the categorical observations of the Supreme Court in this regard contained in para 23 of the case of Parimal (supra). I have already noted above that the applicant/defendant no.4 was endeavoured to be served not only in one method by registered post but also through the court process server although service could not be effected through the court process server who had given his reports dated 2.6.2009 and 25.6.2009.