Judgment:
A. Pasayat, J.
1. The appellants call in question the correctness of the order passed by the learned Subordinate Judge, First Court, Cuttack rejecting a petition filed under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (in short the 'Code'), praying to set aside an ex parte decree passed in T.S. No. 308 of 1984.
2. The background facts are that the respondent as plaintiff filed the aforesaid suit for a specific performance of contract. According to the appellants summons were suppressed and consequently, they had no knowledge about the filing of the suit and the suit was decided ex parte. The appellants filed a petition under Order 9, Rule 13 of the Code for setting aside the ex parte decree and for hearing the suit on merits. The same has been dismissed, on the ground that service of summons has been duly proved and therefore, the appellants having not appeared in spite of valid service of summons, there was nothingillicit in the ex parte decree. In the present appeal, it has been asserted that there was no service of summons, and in any event summons having not been issued through registered post though mandated by Order 5, Rule 19A of the Code, the proceeding was vitiated and therefore, refusal to restore the suit is improper. The respondent however, countered the assertions by submitting that the service of summons has been duly proved and merely because summons were not sent by registered post, it cannot be held that there was any infirmity.
3. For resolution of the dispute, reference to certain factual aspects is necessary in addition to the consideration of the scope and ambit of Order 5, Rule 19A of the Code. The suit was filed on 18-8-1984. On 18-9-1984 the plaint was admitted and order was passed by the learned Subordinate Judge to issue summons both ways i.e. through Court and by registered post fixing 6-11-1984 for settlement of issues. On 6-11-1984 order was passed to the effect that service return was indicating affixture of summons on refusal of the defendants as per report of the Process Server. The defendants were set ex parte and the matter was posted to 19-1-1985 for ex parte hearing. On 19-1-1985 the matter was heard ex parte and was posted to 28-1-1985 for ex parte judgment. The suit was decreed ex parte against the defendants. The application under Order 9, Rule 13 of the Code was filed on 11-2-1985, which has been rejected as aforesaid. The stand of the petitioners was not refusal as stated and in fact, appellant No. 1 was staying at Delhi at the relevant time and could not have refused to receive the summons. Further, it was stated that appellant No. 2 is a purdanasin lady. The Process Server was examined who has stated that he had gone to the house of the appellants and tendered summons to the appellants, who were identified by the present respondent. As they refused to accept the summons there was service by affixture. The learned Subordinate Judge has disbelieved the plea of non-receipt, primarily on the ground that the appellants were not themselves examined and their power of attorney holder was examined. The learned Subordinate Jude also placed relianceon the deposition of respondent No. 2 in a house rent control proceeding, where she has stated that after receiving summons she came to know about the suit in the Court of Subordinate Judge, Cuttack. I shall deal with the factual controversy first. Even if it is held that appellant No. 2 had knowledge about the suit, yet there is no material to show that appellant No. 1 had refused to receive the summons. On the contrary, from Ext. 3, the registered postal cover relating to Advocate's notice sent by the respondent to the appellant No. 1, it transpires that the letter was addressed to the local address of appellant No. 1, but was redirected to Delhi address in the month of April, 1984. Of course the fact that appellant No. 1 was at Delhi in April, 1984 does not necessarily rule out the possibility of appellant No. 1 being at Cuttack in August, 1984. However, this is a factor which prima facie shows that appellant No. 1 was normally staying at Delhi. Further, the statement of the appellant No. 2 in the House Rent Control proceeding is ambiguous. It is the specific case of the respondent that she refused to receive summons issued through Court. But the statement of appellant No. 2 is to the effect that she knew about the suit after receiving the summons. This apparent confusion has not been noticed by the Court below. Added to it, I find that summons were not issued by registered post, though specifically ordered by the learned Subordinate Judge.
4. Order 5, Rule 19A of the Code was inserted by Act 104 of 1976 with effect from 1-2-1977. It posits that the Court shall, in addition to, and simultaneously with the issue of summons for service in the manner provided in Rr. 9 to 19 of O, 5 direct summons be served by registered post, acknowledgment due addressed to the defendant or his agent. However, the Court has discretion to dispense with such issue when it is considered so necessary. Emphasis on the issue of summons by registered post is implicit from Sub-rule (2). Sanctity is attached to such issue as would be apparent from the fact that in terms of Sub-rule (2), a presumption of refusal to be drawn where there is endorsement by postal authority that the defendant or his agentrefused to take delivery of the postal articles containing the summons. The legislative intent in this regard is further apparent from the proviso to Rule (2) which provides that if summons were issued by registered post being properly addressed, prepared, with acknowledgment due and if acknowledgment is not received in Court within thirty days from the date of issue being, either lost or mislaid or for any other reason, declaration to the fact that the summons have been duly served shall be made by Court. Similarly declaration is impein Sub-rule (2) itself. The question is whether it is a mandatory requirements. The use of expression 'shall' in Sub-rule (1) indicates it to be mandatory in nature. Though expression 'shall' is not always indicative of mandatory nature of a provision, yet where consequences which flow from the non-observance have far-reaching effect, use of the expression 'shall' makes the provision mandatory. If a person does not appear after receipt of summons, he invites adjudication which may be prejudicial to him. Therefore, legislature in its wisdom to rule out any manipultation has insisted on compliance of both modes. The Court has discretion to dispense with issue of summons by registered post, if it considered so necessary. In the instant case, the Court had directed issue of summons both ways. Non-compliance therefore, rendered the proceeding invalid. On that basis also, the ex parte decree is not sustainable. Therefore, on both the counts as indicated above, order of rejection of application under Order 9, Rule 13 of the Code is not tenable. The ex parte judgment passed on 28-1-1985 is set aside and the suit is restored to file to the stage where it stood on 6-11-1984. To avoid unnecessary delay, the parties are directed to appear before the learned Subordinate Judge on 5-7-1991. Written statement shall be filed by the appellants-defendants within the said date. The learned Subordinate Judge shall, thereafter proceed with the trial in accordance with law.
The Miscellaneous appeal is allowed. No costs.