The New India Assurance Co.Ltd vs Smt.Nasibunnisa Mohd.Israr Khan And ... on 14 October, 2011
4] Mr. Patil, learned Counsel for original Defendant made threefold
contentions viz (i) service of summons was ordered to be effected
through RPAD, (ii) admittedly suit was initiated in the Civil Court at
Alibaug and (iii) the Petitioner/Defendant is shown to be residing
outside the jurisdiction of the said court. In that view of the matter,
having regard to the scheme of order 9 Rule 3 and 21, summons
should have been effected through RPAD where Petitioner/Defendant
was residing. Assuming without admitting that the order of the Court
of effecting service through RPAD directly on the Petitioner was
justified under the provisions of Order 5, fact remains that envelope
containing suit summons was returned with endorsement "summons
returned as unclaimed, intimation posted". According to him in view
of the judgment of this Court in the matter of First Appeal (Stamp)
No.13185 of 2013 delivered on 14 th October, 2011 in the matter of
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WP-7455-15.doc
New India Assurance Co. Ltd. Vs Smt. Nasibunnisa Mohd. Israr Khan
such service cannot be termed as good service and that being so, ex
parte decree is liable to be set aside as the same is based without
opportunity of hearing.