RTI judgement to get Certified copies from court

CENTRAL INFORMATION COMMISSION
Room no. 415, 4th Floor, Block IV,
Old JNU Campus, New Delhi – 110066
Tel: +91 11 26161796
Decision No. CIC/SG/A/2008/00064/SG/1287
Appeal No. CIC/ SG/A/2008/00064
Relevant facts emerging from the Appeal:
Appellant : Mr. N. Venkatesan
Plot No. 28, 1st Floor,
Krishnamachari Nagar,
2nd Street, Alapakkam,
Chennai-600116
Respondent 1 : Mr. Raj Kumar Khudania
Superintendent
Public Information Officer (CPIO)
Office of the District and Sessions Judge
Tis Hazari Courts, Delhi-110054
RTI application filed on : 01/08/2008
Reply of the PIO : 11/08/2008
First Appeal filed on : 24/08/2008
First Appellate Authority order : 10/09/2008
Second Appeal filed on : 23/10/2008
Information Sought:
The appellant had sought information in form of the certified copies of the judgment issued under the case No. HMA 926 of 2005 (Lt Col. Srinivas v Subha Srinivas ) from Mr. Raj Kumar Khudania, Superintendent, Public Information Officer (CPIO), Office of the District and Sessions Judge, Tis Hazari Courts, Delhi-110054.
The PIO replied stating that the appellant can move the application before the concerned copying agency as per the rules for obtaining certified copies after paying necessary charges as per the rules.
Not satisfied by the Reply of PIO the appellant filed First Appeal on 24/08/2008.
First Appellate Authority Ordered:
‘In the view of provisions contained in Section 22 of the Hindu Marriage Act 1955, the appellant who is not a party to the said matrimonial proceedings cannot be supplied a copy and judgment or decree. Further the appellant was informed about the name of the copying agency i.e. Copying Agency, Sessions, Tis Hazari Courts, Delhi.’
Relevant facts emerging during hearing on 20 January 2009:
The following were present.
Appellant: Absent
Respondent: Mr. K.S.Rawat PIO
The PIO states that:
1- No information is being ‘held’ by the Court because there is a provision of the inspection of the record with the permission of the court and taking certified copy from the copying agency Under Section 76 of the Indian evidence act and if the case is pending before the court of law, it is a dispute between a party and party to the case can inspect the file with the permission of the Court, otherwise it will be contempt of court under Section 8(1)(b) of the RTI act. The PIO contends that the word ‘held’ occurring in Section 2(j) means “withholding and not giving.”
2- It has not been indicated in the application whether the information required, belongs to the third party.
3- The applicant is an advocate and it has not been disclosed whether the information is required is under the profession or not.
The order is reserved.
Decision given on 27 January 2009 :
The denial by the PIO is based on the three contention made by him before the Commission. He has also claimed that since there are existing rules for giving certified copies from the concerned agency the appellant must obtain the information by using the copying agency.
The First appellate authority has given two contradictory directions by first stating that the information cannot be given as per provisions of the Section 22 of the Hindu Marriage Act and then implied that the information could be obtained from the Copying agency.
We will first deal with the contentions of the PIO. He has invented a meaning of the word ‘held’ as meaning ‘withholding and not giving’. The word ‘held’ is usually understood to mean to be in possession of. ‘Held is a past participle of the word ‘hold’. Oxford Dictionary defines hold as ‘grasp, carry or support; have in one’s possession’. Nobody would ascribe the meaning ‘withholding and not giving up’ as contended by the PIO. Since there is no specific order of a Court expressly forbidding the information from being published the PIOs plea that disclosing this information will constitute contempt of court is without any basis.
The PIO states that the applicant has not disclosed whether the information belongs to a third party, and that he has not disclosed whether the information is required by him for use in his profession. Neither of these is relevant, since there is no requirement in law for the applicant to disclose either of these.
The First appellate authority’s has stated that under Section 22 of the Hindu Marriage Act 1955 a copy of the judgement passed by a Matrimonial Court cannot be supplied. The RTI act at Section 22 has clearly stated, ‘ The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.’. Hence unless there is a provision in the RTI act to deny the information, it will have to be provided.
No claim has been made by the PIO of any exemption under the RTI act to deny the information.
If a Public authority has a process of disclosing certain information which can also be accessed by a Citizen using Right to Information, it is the Citizen’s right to decide which route he wishes to use. The existence of another method of accessing information cannot be used to deny the Citizen his freedom to use his fundamental right codified under the Right to Information Act. If Parliament wanted to restrict his right, it would have been stated in the Law. Nobody else has the right to constrain or constrict the rights of the Citizen.
There is no proviso in the Right to Information Act which restrains the Citizen’s right to use it, if another route to avail information has been offered. It is a Citizen’s right to use the most convenient and efficacious means available to him.
The Appeal is allowed.
The PIO will provide the certified copies of the judgment issued under the case No. HMA 926 of 2005 (Lt Col. Srinivas v Subha Srinivas ) to the appellant free of cost before 10 February 2009.
Notice of this decision be given free of cost to the parties.
Shailesh Gandhi
Information Commissioner
27 January 2009
(In any case correspondence on this decision, mention the complete decision number.)

RTI regarding 498-A IPC

CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/01515 dated 12.12.2007
Right to Information Act 2005 – Section 19
Appellant - Shri Kollu Durga Prasad
Respondent - Ministry of Home Affairs (MHA)
Facts:
By two RTI applications addressed to Prime Minister’s Office and Ministry of Law & Justice, both dated 25.7.07 and a third application dated 22.9.07 addressed to the President’s Secretariat Shri Kollu Durga Prasad of Hyderabad has sought the following information:
Application of 25.7.07
“I would like you to study about 498A cases implementation and usage and provide detailed information for following points. If it is possible, please circulate the same information to all departments (Also to major news papers) which are involved in implementing this section.
1. What is the procedure to be following by police and judicial system when a 498A case is field?
2. When a 498A case is filed, if in the police enquiry it was found false, what procedure to be followed.
3. What are the guidelines given to police department and judges to ensure that this act is not misused and innocent people do not suffer?
4. When Mallinath committee suggestions would get implemented.
5. When Supreme Court response for PIL would be taken into consideration when implementing section 498A.
6. Why Jharkhand High Court Decision is not applicable to entire India.
7. From the time section 498A came into place to till date,
a. How many 498A cases are filed in each state, year wise, total out many people got arrested?
1
b. Out of these cases how many are genuine and how many are false cases. What is the average time taken for resolving each case?
c. How many are out of court settlements, how much actual court time each case is taking.
d. What is the conviction rate in these cases?
8. Please conduct a study and prepare a report of what is the life style of females who filed 498a cases and also accused in 498a cases. Has it helped anybody?
9. I would like PM’s office opinion on this act.”
Application of 22.9.07
“I would like you to study about 498A cases implementation and usage and provide detailed information for following points. If it is possible, please circulate the same information to all departments (Also to major news papers) which are involved in implementing this section.
1. When Mallinath committee suggestions would get implemented. If not why?
2. What is the action taken on Supreme Court response for a PIL filed against 498A Sushil Kumar Sharma vs. Union of India and Ors. Jul 19, 2005 *citation : JT 2005 (6) SC 266 by Hon’ble Judges : Ajit Pasayat and H. K.Sema, JJ, when implementing Sec. 498A.
3. Why Jharkhand High Court Decision is not applicable to entire India. Chief Justice of Jharkhand Mr. V. K. Gupta on 11.7.2001 against a case “Birendra Jha vs. The State of Jharkhand, A.B.A. No. 4654 of 2001.”
4. What is the action taken by Central Government for the Judgment given by HON’BLE MR. JUSTICE J. D. KAPOOR in case No. 462/2002 19.5.2003
5. What is the action taken by Central Government for the Judgment given by JUSTICE SHIV NARAYAN DHINGRA, IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on 12.2.2007, Date of Decision: February 23, 2007. CRL. M.C. 7262/2006 which clearly talks about the procedure to be followed when these cases are filed.
2
6. What is the procedure to be following by police and judicial system when a 498A case is field?
7. What are the guidelines given to police department and judges to ensure that this act is not misused and innocent people do not suffer?
8. Why government is not following the rules laid by Supreme Court and high court when courts many times saying these sections are misused.?
9. Statistics of 498A cases with following details in following format:
a. No. of 498A cases filed in each state, year wise from year 1990 to till date.
b. Total No. of accused.
c. No. of people got arrested.
d. No. of people who got anticipatory bail.
e. No. of accused who are women.
f. No. of cases found false at FIR Stage.
g. No. of cases found false as Trial stage.
h. No. of cases got convicted.
i. No. of people got convicted (Male/Female)”
The application to the PMO was transferred on 30.7.07 to the Ministry of Home Affairs and to the Chief Secretary, Andhra Pradesh, upon which Shri Durga Prasad received a response on 3.8.07 from Shri D. R. Meena, CPIO, Dep't. of Legal Affairs, Ministry of Law & Justice, as follows:
“As per section 2(f) of the Right to Information Act, 2005 a Public Authority may provide information which is held by it or under it s control and a requestor is entitled for information only in respect of categories information as mentioned in Section 2(f) of the said Act. Moreover, a requestor right extend only to seeking information as defined in section 2(f) either by pinpointing the files, documents, papers and records etc or by mentioning the type of information as may be available with the specified Pubic Authority.
As per Government of India (Allocation of Business) Rules, 1961 the basic function of this Department is to render advice to various Ministries/ Departments of the government of India on legal matters, conveyancing etc…… You have vide your aforesaid letter sought opinion of this Department that cannot be tendered in terms of the said rules. Moreover, tendering opinion is also not covered within the ambit of the definition as defined in Section 2 (f) of the Right to Information Act, 2005. It is also evident from position
3
explained in Para 3 above that you have not sought for any information as defined in Section 2(f) of the Right to Information Act, 2005. However, a copy of your aforesaid request is being forwarded to Ministry of Home Affairs, for action as deems fit.’
He received a further response from CPIO Shri S. K. Bhatnagar, Dy. Secretary, Ministry of Home Affairs on 13.8.07, as follows:
“You have asked for opinion and conducting study on life style of females who file 498A cases, etc. The matter has been examined in this Ministry and since you have not sought any information as defined in Section 2 (f) of the RTI Act, 2005 no action on the request is taken.’
In this case appellant Shri Durga Prasad preferred two appeals:
1) To the Ministry of Home Affairs in which he has pleaded as follows:
“I would like appellate authority to consider my appeal and my first application in its entirely and directs the CPIO to provide information for each point. If information can’t be provided for certain points, explanation can be given why information can’t be provided. If law minister and government take notice of this issue it would help thousands of people who have been suffering in false cases.
Supreme Court and high courts have commented may times about misuse of these cases and forwarded the Judgments to Law Ministry and other concerned government authority but it seems government has just ignored these judgments and still continuing the laws which are highly misused so I would like to know what government is doing on the issues.’
2) The other appeal of the same date is addressed to the Jt. Secretary, PMO in which he submitted as follows:
“Till now I have not received any information from CPIO’s of Home Secretary, Home Affairs and Chief Secretary of Andhra Pradesh other than forwarding my application from one office to other office. The CPIO from PMO office also just forwarded my application to these offices but not bothered whether other CPIOs responded to my application or not. Other CPIOs followed same thing and they were also not bothered to answer my application. It is the responsibility of CPIO when forwarding any application to others to make sure that it is addresses on time. If PMO office and Central
4
Government does not follow the rules laid by it then who will follow the act.”
Shri S. K. Chattopadhyay, Jt. Secretary and Appellate Authority, Ministry of Home Affairs in his order of 25.9.07 responded as follows:
“The information in respect of points 8 & 9 has already been communicated to you by the Shri D. R. Meena, CPIO, Ministry of Law & Justice, Department of Legal Affairs vide his letter No. 21 (305)/2007-IC dated 3.5.2007. Shri S. K. Bhatnagar, Deputy Secretary & CPIO, MHA vide letter of even number dated the 13th August, 2007 had also drawn your attention to the reply already given to you by CPIO Ministry of Law & Justice, Department of Legal Affairs. However, inadvertently it was not intimated to you that your application has been transferred by this Ministry to the concerned CPIOs for reply in respect of points 1 to 7 of your application dated 25.7.2007. Thus, there has been no violation of the procedure on the part of Shri S. K. Bhatnagar, Dy. Secretary & CPIO and accordingly your appeal against him stands disposed off.
Anyway copies of your appeal dated 27.8.07 are being forwarded to the concerned appellate authorities in respect of the CPIOs mentioned in Para- above to whom your application was forwarded for necessary action under the Right to Information Act,2005.”
Shri Javed Usmani, Jt. Secretary to Prime Minister and Appellate Authority on his part responded on 25.10.07, as below:
“In transferring your said application to the Ministry of Home Affairs & to the Government of Andhra Pradesh u/s 6 (3) of the RTI Act, the Central Public Information Offer of the PMO has followed the prescribed statutory provisions and has appropriately dealt with your said application.’
In the meantime, Shri Durga Prasad received responses from other Departments to whom the application had been transferred by MHA, as follows:
1) From the Crime Records Bureau on 16.8.07 as follows:
“The requisite details under 498A IPC (Cruelty by husband or His relatives) for last five years from 2001 to 2005 are enclosed. The details include Cases Reported, Persons Arrested, Total Cases for Investigation, Cases found False, True Cases, Cases compounded or withdrawn, Cases in which Trials completed, cases convicted and conviction rate during 2001 to 2005.’
5
2) From CPIO Shri N. N. Perumal, Director, Judicial, Judicial Cell of the Ministry of Home Affairs. On the other hand, Shri Kollu Durga Prasad received a more exhaustive reply dated 12.11.07 as below:
“Reply to Question Nos. (i) & (iii): The criteria/ guidelines followed in registering a case under section 498A is similar to registering any other cognizable offence as laid down in the Code of Criminal Procedure, 1973. Particularly, Chapter V & VI are applicable as far as arrest of persons or processes to compel appearance.
Reply to Question No. (ii): Section 182 and 211 of Indian Penal Code provide punishment for making wrong complaint and false charges of offence. Similarly Section 358 of Code of Criminal Procedure, deals with cases of groundless arrests.
Reply to Question No. (iv): Acceptance/ implementation of the recommendation/ suggestions made by the Mallimath Committee would require amendments to the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 through an amendment Bill. Since the Criminal Law and the Criminal Procedure are on the Concurrent List of the Seventh Schedule to the Constitution of India and criminal laws are administered by the State Governments, any amendment to them requires consultation with the States. The report is being processed in consultation with the State Governments and no time frame can be fixed.
Reply to Question No. (v): The Malimath Committee on Reforms of Criminal Justice System in its Report has inter-alia recommended to make Section 498A bailable and compoundable. Acceptance/ implementation of the recommendation/ suggestions made by the Mallimath Committee would require amendments to the Indian Penal Code 1860. Any amendment to the Indian Penal Code requires consultation with the States. The report is being processed in consultation with State Governments and no time frame can be fixed.
Reply to Question No. (vi): The decision/ judgment of a particular High Court is not applicable to the entire country as in the case of a judgment/ decision of the Supreme Court of India. However such decision / judgment of a High Court has a persuasive value in respect of other High Courts.”
6
The latter reply was, as can be seen, received by Shri Kollu Durga Prasad after he had received orders on the first appeal from the Ministry of Home Affairs. This information has not been challenged in appeal. The response received from the National Crime Bureau, however, was challenged in an appeal on 27.8.07 addressed to Jt. Secretary (CS) Shri K. Skandan, MHA received in NCRB on 29.8.07 from MHA to which a reply was sent by Shri AC Awasthy Dy. Director (ANT), Appellate Authority, NCRB on 1.10.07 providing the following information:
“Data on Section 498A IPC is available with NCRB from the year 1995. The State/ UT wise and year wise details of cases reported, persons arrested total cases for investigation, cases found false, true cases, cases compounded or withdrawn, cases in which trial completed cases convicted and conviction rate from 1995 to 2005 are enclosed herewith.’
This decision in first appeal has not been challenged.
The application to the President’s Sectt. was on its part transferred on 5.10.07 to the MHA and the Deptt. of Legal Affairs. MHA in turn transferred the matter to the Dy. Secy., Legal Affairs, which in turn through its letter of 15.10.07 further transferred the matter to the MHA Judicial Cell, which in turn responded to the application of Shri Kollu Durga Prasad on 12.11.07, through a letter of CPIO Shri NM Perumal, Director as follows :
“Reply to Question No. (1)
Acceptance / implementation of the recommendation / suggestions made by the Mallimath Committee would require amendments to the Indian Penal Code 1860 and the Code of Criminal Procedure, 1973 through an amendment Bill. Since the Crime Law and the Criminal Procedure are on the Concurrent List of the Seventh Schedule to the Constitution of India and criminal laws are administered by the State Governments, any amendment to them requires consultation with the States. The report is being processed in consultation with the State Governments and no time frame can be fixed.
Reply to Question Nos. (5) & (8)
No guidelines were received by this Ministry relating to section 298A.
7
Reply to Question No. (3) :
The decision / judgment of a particular High Court is not applicable to the entire country as in the case of a judgment / decision of the Supreme Court of India. However, such decision / judgment of a High Court have a persuasive value in respect of other High Courts.
Reply to Question Nos. (6) & (7)
The criteria / guidelines followed in registering a case under section 498A is similar to registering any other cognizable offence as laid down in the Code of Criminal Procedure, 1973, Chapter V & VI are applicable as far as arrest of persons or processes to compel appearance.
Section 182 & 211 of Indian Penal Code provide punishment for making wrong complaint and false charges of offence. Similarly Section 358 of Code of Criminal Procedure deals with cases of groundless arrests.”
Appellant’s prayer before us in second appeal is as below:
“I would like CIC, Second appellate authority to consider my appeal and my first application in its entirely and directs the CPIO’s to provide information for each point as detailed as possible and also why they have not provided the required information on time.
Supreme Court and high courts have commented many times about misuse of these cases and forwarded the Judgments to Government and concerned government authority but it seems government has just ignored these judgments and still continuing these gender biased laws which are highly misused and thousands of innocent people suffering. So I would like CIC to look into my appeal with kindness and direct the PIO to provide detailed information and also direct the government take necessary action on my application.”
In response to our appeal notice CPIO Shri S. K. Bhatnagar, Dy. Secy. Submitted his letter of 25.3.09 pleading as follows:
“Shri Prasad has alleged in his second appeal to CIC that the reply received by him from Shri Perumal is vague and casual. It is requested that the hearing may be attended by the present CPIO to present the case in respect of Judicial Division.’
8
The appeal was heard through videoconference on 24.4.2009. The following are present:
Appellant at NIC Studio, Hyderabad
Sh. Durga Prasad
Respondents at CIC Studio, New Delhi
Sh. M. K. Sharma, Addl. LA & CPIO MoL
Sh. R. K.Srivastava, ALA & CPIO MoL
Sh. A. K. Srivastava, S.O. MoL
Sh. R. P. Nath, Jt. Secy., MHA
Sh. S. K. Bhatnagar, D.S., MHA
Sh. K.K. Majumdar, U.S., MHA
Sh. Mohinder Singh, Dir. , MHA
Sh. R. B. Singh, S.O., NCRB
Sh. Amit Agrawal, Director & CPIO, PMO
We noted that the portion concerning PMO has already been resolved and the CPIO of that public authority is not required. Shri Agrawal, Director, PMO was, therefore, permitted to leave.
Appellant Shri Durga Prasad submitted that there are court orders enjoining certain action on Govt. with regard to implementation of Sec. 498A IPC i.e. harassment of the wife by the husband and his relative and inadequate dowry or non-fulfillment of demands of dowry. He submitted that what he wanted to know was what had been done in compliance of the orders of the Courts. In this matter he has specifically quoted the judgment of Hon’ble J.D. Kapoor J. of the Delhi High Court in CRL R 462/2002 of 19.5.03, Savitri Devi vs. Ramesh Chand & Ors in which the Hon’ble Justice has held as follows:
“31. there is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.
32. These ground realities have persuaded this court to recommend to the authorities and lawmakers to have a review of the situation and legal provision.
33. Copy of the order is sent to Law Secretary, Union of India.”
9
Shri Kollu Durga Prasad has quoted very extensively from the following judgments in his application before the President’s Secretariat:
“IN THE HIGH COURT OF DELHI CRL. M. 7262/2006
Date of Decision: February 23, 2007 Shiv Narayan Dhingra J.”
“IN THE HIGH COURT OF DELHI CRL. R / 2002
Date of Decision: May 19, 2003
Savitri Devi Versus Ramesh Chand and Ors. J. D. Kapoor J.”
“IN THE HIGH COURT OF KARNATAKA Criminal Petition no.4121/2003
Date of Decision April 15, 2005
AC Kabbin J
In his argument, however, he has specifically relied on the decision in CRL R 426/2002 Savitri Devi vs. Ram Chander & Ors. of the High Court of Delhi. He was aggrieved with the response from MHA, which he found to be of general nature and does not address the specific question raised by him. However, PIO Sh. Mohinder Singh, Director, Judicial Cell, MHA submitted that such information as is held by the Judicial Cell, which is the nodal office in matters of this nature has been provided to appellant. In addition, Shri M. K. Verma, Addl. L.A. & CPIO Deptt. of Legal Affairs submitted that since the decision of the Delhi High Court pertains to a question concerning women, the matter had been referred to the Ministry of Women & Child Development on 6.2.08. Shri Kollu Durga Prasad, however, submitted that he had received a response from MOW&CD in which the latter has informed him that they have no information in this matter. A copy of this response was shown to us in the hearing.
DECISION NOTICE
Having heard the arguments and examined the records, we find that all information that is held by the public authorities impleaded in the appeal and present in the hearing, has indeed been provided to Shri Kollu Durga Prasad. In response to his question, as to which Ministry is to be held responsible for compliance with the orders of the High Court of Delhi in CRL R 426/2002 –
10
Savitri Devi vs. Ram Chander & Ors., we have examined the complete decision of Hon’ble J. D. Kapoor J. In this judgment the learned Judge has dealt extensively with matters relating to dowry death and cases registered u/s 498A/406/306 IPC arising out of domestic violence. He has come to the following conclusion:
“27. It is rightly said sometimes that the remedies are worse than the perils or disease. Having seen and experienced the enforcement of these laws for decades, time has come to take stock and review them as thousands of marriages have been sacrificed at the altar of this provision. In one metropolis alone, thousands divorce cases arising from the cases under Section 498A/406 IPC are pending in Courts. There are equal or more numbers of marriages which are in limbo. What else is it if not a social catastrophe? This should be a matter of concern for social scientists, lawmakers and Judges also. Sterner provisions have failed to make any dent. Menace and evil of dowry is till looming large. In he words of Supreme Court (Pawan Kumar’s case AIR 1998 SC 958) in spite of stringent measures, sections of society are still boldly pursuing this chronic evil to fulfill their greedy desires.
28. It does not mean that the wolves masquerading in the human flesh should be given a free hand. They should rather be dealt with iron hand. Again it is because of tendency to involve innocent persons that the Supreme Court has cautioned the court.
29. To start with, marital offences under Sections 498A/406 IPC be made bail able, if no grave physical injury is inflicted and necessarily compoundable. If the parties decide to either settle their disputes amicably to salvage the marriage or decide to put an end to their marriage by mutual divorce, they should be allowed to compound the offences so that criminal proceedings don’t chase them if they want to start their marital life afresh or otherwise. The past should not haunt them nor the hatred they have buried should be allowed to be dug up and mar their present life or future married life.
30. Lastly in view of sensitivity of such offences and in order to avoid clumsiness in human relations and viewing this problem from human and social point of view, and the law, as it stands today it is required that the investigation into these offices be vested in civil authorities like Executive Magistrates and after his finding as to the commission of the offence, cognizance should be taken. Till such a mechanism is evolved, no police officer below the rank of ACP for the offences under sec. 498A/406 IPC and D.C.P. for the offence
11
under Sec. 304-B IPC i.e. dowry death should be vested with investigation and where minor school going children are named, they shall not be arrested and be sent to the court for taking cognizance and further proceedings. Their arrest ruins their future life and lower them in their self-esteem. This fact that their names also figured in the complaint lodged by the wife. In certain cases even grand parents of the husband who are in their eighties and nineties suffer this traumatic situation.
31. There is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.
32. These ground realities have persuaded this court to recommend to the authorities and law makers to have a review of the situation and legal provision.”
As will be clear from the above, the orders of the High Court of Delhi are of general nature. As is also clear from the processing of the RTI application of Sh. Kollu Durga Prasad no complete legislation has resulted there from. The information sought by appellant Sh. Kollu Durga Prasad is now in his possession, which he may use for whatever legal recourse he wishes. The mandate of the RTI Act 2005 however, stands fulfilled. We, therefore, find no merit in this appeal, which is hereby dismissed.
Reserved in the hearing, this decision is announced in the open chamber on this 28th day of April, 2009. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
28.4.2009
12
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar)
Joint Registrar
27.4.2009
13

Court ordered Legal Terrorist to pay 7.7cr Rs. to innocent sibling of th husband

G.A. No. 1297 of 2007
C.S. No. 223 of 2005

IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction

PRITAM SEN

-V-

SMT. SWASTIKA SEN (MUKHERJEE)

For Plaintiff/Responden t: Mr. Krishnendu Gooptu,
Mr. C. K. Saha, Advs.

For Defendant/Petitione r: Mr. Malay Kr. Ghose,
Mr. S. K. Trivedi, Advs.

Heard on : 2-5-2007, 10-5-2007, 16-5-2007, 5-6-2007,
29-4-2008, 14-5-2008, 3-6-2008, 17-6-2008,
8-7-2008, 14-7-2008.

BEFORE:
THE HON'BLE MR. JUSTICE MAHARAJ SINHA.

Judgement delivered..: 25-9-2008.
MAHARAJ SINHA, J.

On 16 April 2007, when the plaintiff was about to complete his
evidence, learned Counsel engaged by the sole defendant appeared in
Court for the first time and submitted that the defendant was willing to
defend the suit and for such purpose the defendant would make necessary
application for obtaining leave to enter appearance and seek direction for
filing a written statement to contest the suit instituted by the plaintiff in
this Court. When this prayer was made on behalf of the defendant by the
defendant's learned Counsel the suit was already heard on several days,
namely 11 December 2006, 18 December 2006, 15 January 2007, 20
February 2007, 7 March 2007, 14 March 2008, 28 March 2007, 4 April
2007 and 5 April 2007, as an undefended suit.

It should, however, be mentioned here that the plaintiff was allowed
to proceed with the suit treating it to be an undefended suit as I was
satisfied on the basis of the records of the proceeding regarding the due
service of writ of summons upon the defendant including the necessary
certificates issued by the Registrar, Original Side and by the Sheriff's
Office.

It is an admitted position however that when the learned Counsel
appeared on behalf of the defendant on 16 April 2007 and made the above
prayer the defendant did not even enter appearance to contest the suit. It
was submitted on behalf of the defendant that the defendant was unable to
contest the suit as no writ of summons was ever served upon the
defendant and as such the defendant was not in the know that the above
suit was instituted by the plaintiff in this Court and the same was being
heard as an undefended suit.

However, after considering the submissions of the learned Counsel
both for the plaintiff and the defendant I adjourned the suit till 25 April
2007 and in the mean time learned Advocate-on- record of the defendant
was given liberty to inspect the records of the suit proceeding except the
depositions of the plaintiff and his witness/witnesses, who had already
given evidence in Court by then, upon notice to the learned Advocate-on-
record of the plaintiff and in the presence of an officer of this Court.

The defendant thereafter made an application essentially for a
direction upon the plaintiff that the plaintiff should serve the writ of
summons together with the copy of the plaint filed in the suit upon the
defendant, that the defendant be granted leave to enter appearance and
thereafter file written statement within a specified time after the service of
writ of summons upon the defendant and stay of hearing of the suit as an
undefended suit. The full prayers, however, are set out in the defendant's
above application at pages 13, 14 and 15 thereof, G. A. No. 1297 of 2007.
Since the plaintiff wanted to contest the above application of the
defendant, direction was given for using affidavits for final disposal of the
defendant's application on merits.

The defendant, who is the only defendant as aforesaid, has primarily
based her case only on one ground for obtaining leave of this Court to
enter appearance for contesting the suit by filing a written statement, that
since no writ of summons or copy of the plaint was received by the
defendant the defendant was unable to enter appearance and consequently
file the written statement to contest the suit. (Paragraph 23 of the Petition).

It is an admitted position however that in this case the service of writ
of summons upon the defendant was sought to be effected by two modes,
namely delivery of summons by Court and issue of summons for service by
post in addition to personal service.

It was, however, rightly pointed out by the learned Counsel for the
plaintiff that simultaneous issue of summons of service by post in addition
to personal service "is no longer required" in view of the amendment of the
Code of Civil Procedure with effect from 2002, to be precise from 1 July
2002, as by virtue of such amendment, rule 19(a) of Order 5 of the Code of
Civil Procedure (CPC, in short) was omitted altogether. Before the said rule
was omitted a simultaneous issue of summons for service by post in
addition to personal service was generally regarded as necessary though
Court could dispense with such simultaneous issue of summons for
service if the Court considered such service unnecessary. The effect of the
2002 amendment or rather the effect of deletion of rule 19(a) of Order 5 of
CPC on the present case is that if the plaintiff is in a position to satisfy the
Court that the writ of summons was duly served upon the defendant
through Court or rather by the process server of the Court in question,
then and in that event, the proof of service of writ of summons by post
upon the defendant would no longer be treated to be necessary.
In the instant case, however, as far as the records of the proceeding
show both modes were used for service of writ of summons upon the
defendant, one through the process server of the District Court of Alipore
since the place of residence of the defendant was (is) outside the original
jurisdiction of this Court and also by registered post.

I would first examine the relevant averments made by the petitioner,
namely the defendant in her petition in support of her case that no writ of
summons or copy of the plaint was received by the defendant.

In order to demonstrate that no writ of summons or the copy of the
plaint was received by the defendant, the contents of the report dated 22
December 2005 of the process server have been relied on. The defendant
has tried to show that according to the process server's report he "went to
the 4th floor (Panch Tala in Bengali) at premises no. 49/65, Gulam
Muhammad Shah Road, Calcutta 700 033 on 25 December 2005 and
affixed copy of the writ of summons and the plaint on the outer door of a
room on the 4th floor (Panch Tala in Bengali) of the said premises. [Sub-
paragraph VI of Paragraph 16 at page 8 of the Petition].

According to the defendant, since 1999 "the defendant has been
living and still is residing with her father in the flat on the third floor of
premises no. 49/65, Gulam Muhammad Shah Road, Calcutta 700 033.
The said premises is a four storied building". [Paragraph 17 at
Page 9 of the Petition].
There is no denial, however, that the premises number mentioned in
the report, which I would also call a declaration, is the residential premises
of the defendant. The defendant has also said that the same is a four
storied building but the defendant "has never met any process server".
[Paragraph 17 of the Petition].

The defendant has categorically stated that the defendant had not
received the writ of summons or a copy of the plaint "relating to the suit
being C.S. No. 223 of 2005 and as a result thereof" the defendant could not
enter appearance and file the written statement to defend the suit "by
engaging lawyer when the said suit was heard by this" Court. (Paragraph
23 of the Petition).

Since no writ of summons has been received by the defendant, the
defendant should be given leave to enter appearance and file the written
statement for the purpose of contesting the suit within a specified time
after the due service of the writ of summons upon the defendant with a
copy of the plaint filed in the suit.

Admittedly, the plaintiff instituted the suit in this Court and since
the defendant was(is) residing outside the ordinary original jurisdiction of
this Court the writ of summons was sent to the District Court at Alipore
(as the defendant was(is) residing within the jurisdiction of that Court) for
delivery of writ of summons to the defendant and that is why it is the
process server of the District Court of Alipore who had to serve the writ of
summons upon the defendant as provided in the relevant provisions of the
Code of Civil Procedure, namely sub-rule 4 of rule 9 of Order 5 thereof and
the relevant provisions under chapter 8 of the Original Side Rules.

In support of due service of the writ of summons upon the defendant
by both the modes, as aforesaid, the plaintiff has annexed the relevant
documents to the affidavit-in- opposition used by the plaintiff to contest the
present proceeding initiated by the defendant for the purpose of obtaining
leave to enter appearance and to file the written statement.

For my present purpose, as I would first deal with the service of writ
of summons by the process server, the original report of the process server,
Chunilal Sardar, dated 22 December 2005 as appearing in the writ of
summons and the certificate issued by Sovan Das, Dealing Assistant of the
Sheriff's Office of this Court dated 6 March 2006, need I think be examined
once again. In addition to that the plaintiff, needless to mention, also had
relied on the certificate issued on behalf of the Registrar, Original Side
dated 13 November 2006 certifying that the defendant "has not entered
appearance either in person or by Advocate up to 10 November 2005".

At this juncture, I must say that when I allowed the plaintiff to prove
his claims made in his suit ex parte treating the suit to be an undefended
suit, I was fully satisfied with the due service of the writ of summons upon
the defendant and this satisfaction on my part was based on the above
documents relied upon by the plaintiff or rather on his behalf by his
learned Counsel at the hearing of the suit, copies whereof have also been
annexed to the present affidavit-in- opposition. However, as the hearing of
the present proceeding was initiated by the defendant on the basis of the
leave granted by me I decided to give the defendant a chance to prove the
defendant's case as made out in the petition that the defendant was unable
to appear on the day when the suit was fixed for hearing as the writ of
summons of the suit was not delivered to the defendant, or rather, more
appropriately, the defendant had not received the writ of summons nor a
copy of the plaint which prevented the defendant from entering appearance
and filing the written statement to contest the suit. (Paragraph 23 of the
Petition).

It must be made clear at this stage also that since the plaintiff was
allowed to prove his claims made in the suit ex parte it was not for the
plaintiff to prove due service of summons upon the defendant all over again
either by the delivery of writ of summons by Court or by mail or post as
provided in the Code of Civil Procedure and in the High Court Rules. The
plaintiff, as aforesaid, was allowed to proceed with the suit ex parte as I
was fully satisfied with the due service of writ of summons upon the
defendant after the institution of the suit. Even then, keeping in view the
provisions of rule 19 of order 5 of CPC and more importantly the
statements made by the defendant that "the contents of the report of the
process server should not be taken to be correct without giving" the
defendant an opportunity to cross-examine the process server through her
advocate, (Paragraph 16 Page 10 of the Affidavit-in- Reply), I made the order
on 29 April 2008 whereby the concerned process server, namely Chunilal
Sardar, an employee of the District Court of Alipore, was summoned by me
to give evidence in Court as I thought that his evidence was necessary for
an effective adjudication of the present proceeding, meaning thereby the
proceeding initiated by the defendant with the leave of this Court for
obtaining leave to enter appearance and file the written statement for the
purpose of contesting the suit.

The plaintiff, I repeat, had discharged his initial burden of proving
due service of writ of summons upon the defendant on the basis of the
above mentioned documents including the necessary certificates before
being allowed to prove his claims in the suit ex parte by me.

Since in the present proceeding the defendant has stated that she
was not served with the writ of summons, or rather, had not received the
writ of summons which prevented her from entering appearance for the
purpose of contesting the suit, the onus is on the defendant to prove that
she was not, in fact served with the writ of summons as claimed by the
plaintiff, or rather, the officials of this Court and the Court of Alipore as the
alleged non-service or non-receipt of writ of summons upon or by the
defendant gave the defendant her cause of action for the present
proceeding for obtaining leave to enter appearance and file the written
statement. The defendant, therefore, must discharge the onus of proving
that there was no service of writ of summons upon her as claimed by the
plaintiff together with the concerned departments of this Court including
the process server of the District Court. The plaintiff is under no obligation
to prove due service of writ of summons upon the defendant repeatedly or
all over again since the plaintiff was allowed to proceed with the suit by
this Court as this Court was satisfied with the due service of the writ of
summons upon the defendant in the first place.
Pursuant to my above order, the process server, the said Chunilal
Sardar, an employee of the District Court of Alipore, was examined before
me on 14 May 2008 and he was also thoroughly cross-examined by the
defendant's Counsel on 3 June 2008. The process server gave evidence
that he was working as a process server for nearly 40 years, 38 years to be
precise, and never in the past he was summoned by any Court to give
evidence on due service of writ of summons upon the parties in any matter
and this was the first time that he was summoned to give evidence in
Court. The process server has indeed an unblemished record of nearly
forty years. His appearance, the age and experience are, I have found, very
convincing as well.

The process server in his evidence from the witness box stated in
clear terms that he visited the premises in question on 22 December 2005
at about 2 p.m. when he was told by a person who came out from the
building to go on to the top floor of the said premises, or rather, of the
building in question at the premises as the defendant, the process server
was told by that person, was to be found on the top floor, namely the 4th
floor which, in Bengali, he said "Panch Tala". When he knocked the door
of the flat in question "two ladies came out along with two dogs who were
barking at" him. The ladies opened the door but the collapsible gate of the
flat remained closed. The process server was asked by the ladies the
purpose of his visit, when he explained as to why he was visiting the place.
The process server also mentioned the name of the defendant or rather
called the defendant by name and said that he came to deliver the writ of
summons to the defendant but the ladies refused to accept the same. The
process server then tied the summons with the collapsible gate and as he
was climbing down the stairs the collapsible gate was opened and two dogs
who were little behind the two ladies came running after the process server
but the process server somehow escaped. One of the two ladies who came
out in fact said that she was the defendant. The process server also
approached the person who showed him the way to the top floor but the
person did not keep the request of the process server to sign on the
document i.e. the writ of summons "as that person did not want to sign
any Court's document". On being asked in examination- in-chief why did
the process server mention in his report that he went to the 4th floor
whereas the flat in question was, in fact on the third floor, he said that he
described it to be 4th floor as the person who showed him the way said that
it was "Panch Tala" so the process server went to the top floor and found
the same to be the roof of the building. He then came down to the next
floor and knocked the door when the two ladies came out to answer. I
specifically asked the process server whether he first went to the roof top
and then came down, his answer was "yes", then he said that he came
down to the very next floor. When I asked the process server when he
reached the roof top what he found, he said that he did not find any other
floor on the roof. [Questions 19 to 26 in Examination- in-Chief] .

In his cross-examination the process server, I find, clearly repeated
what he stated in his report dated 12 December 2005, which I take it to be
his declaration as well. He also said the person who showed him the way
to the roof top at the premises in question, in fact, came out from the
house in question when he "called but the person did not disclose his
name, or rather, his identity". He also mentioned that one of the two ladies
who came out from the flat in question did say that she was the defendant
but both of them refused to put their signatures on the documents. In
cross-examination, he explained the whole thing in detail as to how he
went to the roof top and then came down to the next floor and then
knocked the door when two ladies came out, one of whom said that she
was the defendant and then refused to put any signature on the
documents then the process server "tied the writ of summons with the
collapsible gate with thread". In answer to specific questions put by the
defendant's Counsel, namely questions 60 and 61 he explained how he
served the writ of summons

To Counsel:
The expression "latkaya dia jari karilam" in your report written in
Bengali what did you mean by that expression? / By hanging with thread.

What did you hang with the thread? / The true copy of the writ of
summons was hanged with thread by me.

When the defendant's Counsel asserted that there was no collapsible
gate in front of the door of the flat in question, he said that there was a
collapsible gate as well as the door of the flat.

In his entire evidence, which I have examined more than once, the
process server stated in clearest possible terms as to how he served or
delivered the writ of summons to the defendant (who is the only defendant
in the suit).

His evidence in Court, I find, tallies exactly with his report, or rather
corroborates his report or the declaration made by him on 22 December
2005 after the process server completed his service of writ of summons.
Taking an extremely technical approach, learned Counsel on behalf
of the defendant was trying to make out a case that though the process
server mentioned in his report that he served the writ of summons, he did
not say that he also served the copy of the plaint. If the evidence is
analyzed, which I have done very closely and repeatedly, it would be seen
that the only question that was put to the witness, namely the process
server by the defendant's counsel was that he did not serve the writ of
summons to which he repeatedly answered that he did serve the writ of
summons. Why the defendant's Counsel was so shy to suggest the process
server that he "neither served the writ of summons, nor a copy of the
plaint," when the case that the defendant has tried to make out in the
petition is that the defendant did not receive the copy of the writ of
summons nor a copy of the plaint, cannot however be understood with any
rational approach.

It should be mentioned at this stage, however, that the suit was
instituted in this Court and the concerned department of this Court sent
the writ of summons together with the copy of the plaint, as it is done
regularly as a matter of course in every suit, to the concerned District
Court for the purpose of delivering the writ of summons to the defendant
concerned as the defendant admittedly was residing outside the original
jurisdiction of this Court. In this connection, it will be enough to mention
the question put to the process server by the defendant's counsel, namely
question 71 "I put it to you that no writ of summons was served by you
on the defendant" to which his answer was rather specific, he said, "I went
there, I showed her the document, she read it, thereafter she refused to
accept it, then I hanged the copy of the writ of summons with the
collapsible gate with a thread".

Then in answer to question 72 which happened to be the last
question in cross-examination, namely, "I put it to you that the contents of
your report dated 22 December 2005 are not correct", the process server
answered in the positive saying that "it is correct and my report was right".

As I have said above that the process server gave the correct and
perfect answer to the suggestion made by the defendant's Counsel i.e.
question 71 as it was not put to him at the same time that he neither
served the writ of summons nor the copy of the plaint upon the defendant
on 22 December 2005.

In this connection, I shall deal with the judgment of the Supreme
Court relied upon by the defendant's Counsel a little later, before that, I
must also point out that the process server came and gave evidence in
support of his report or the declaration dated 22 December, 2005
regarding his service of writ of summons upon the defendant. He made
positive statements from the witness box in his evidence which I find no
reason to disbelieve, on the contrary, in the absence of any better evidence
from the defendant, I believe and accept the evidence of the process server
and his report or declaration on the due service of the writ of summons
together with the copy of the plaint upon the defendant. It may well be,
that the defendant's counsel did not deliberately ask the process server
whether he served the copy of the plaint together with the written
statement because the answer was expected to be so obvious.
Above all, I find it extremely difficult to appreciate as to why the
defendant did not come forward and give evidence to substantiate her case
made in the petition. As I said above, in order to proceed with the suit the
plaintiff had to satisfy this Court, which the plaintiff did, that after the
institution of the suit the writ of summons was duly served upon the
defendant and in spite of such service the defendant did not enter
appearance and as such the plaintiff had a right to proceed ex parte and
the Court on that basis should allow the plaintiff to proceed ex parte
treating the suit to be an undefended one.

Since the defendant has attempted to set up a case that the
defendant did not receive the writ of summons or the copy of the plaint or
that there was no proper service of writ of summons either by the process
server or by the registered mail the onus is on the defendant to prove that
the service that was alleged to have been effected upon the defendant
either by the Court through its process server or by the registered mail was
not in fact a true service in the first place.

In this connection, the decision of the Supreme Court relied upon by
the defendant's Counsel, namely Sushil Kr. Sabharwal V- Gurpreet Singh
& Ors., reported in A.I.R. 2002 S.C. 2370, is referred to. In that case the
appellant before the Supreme Court was trying to establish that since the
service of writ of summons was sought to be effected upon the defendant
just a day before the date of hearing of the suit and that the process server
concerned did neither affix a copy of the summons nor the plaint on the
wall of the premises in question and since the alleged affixation of the writ
of summons was not witnessed by any person who could identify the
defendant, the so-called service of writ of summons should be treated to be
"non-service of summons" and that should be held to be a good ground for
setting aside an ex parte decree. The High Court in that case, in fact,
refused to set aside the ex parte decree without satisfying itself as to the
due service of the writ of summons, the Supreme Court found.

The facts of that case undoubtedly differ substantially from the facts
of this case so far as the service of writ of summons upon the defendant in
the present case is concerned. However, the Supreme Court after
examining the facts as to how the writ of summons was sought to be
served upon the defendant concerned was satisfied that there was no
proper service of writ of summons upon the concerned defendant as the
endorsement made by the process server was contradictory. The Supreme
Court said in paragraph 8 at page 2371 of the report "We find several
infirmities and lapses on the part of the process server. Firstly, on the
alleged refusal by the defendant either he did not affix a copy of the
summons and the plaint on the wall of the shop or if he claims to have done
so, then the endorsement made by him on the back of the summons does not
support him, rather contradicts him. Secondly, the tendering of the
summons, its refusal and affixation of the summons and copy of the plaint
on the wall should have been witnessed by persons who identified the
defendant and his shop and witnessed such procedure. The endorsement
shows that there were no witnesses available on the spot. The correctness
of such endorsement is difficult to believe even prima facie. The tenant runs
a shoe shop in the suit premises. Apparently, the shop will be situated in a
locality where there are other shops and houses. One can understand
refusal by unwilling persons requested by the process server to witness the
proceedings and be a party to the procedure of the service of summons but to
say that there were no witnesses available on the spot is a statement which
can be accepted only with a pinch of salt. Incidentally, we may state that
though the date of appearance was 23 February 1993 the summons is said
to have been tendered on 22 February 1993, i.e. just a day before the date
of hearing".

But the decision of the Supreme Court, I think, was based on the
evidence of the appellant himself, namely the defendant in the suit, who
complained that there was no proper service of the writ of summons upon
him in the first place and gave evidence to that effect in Court, as the
Supreme Court said "The appellant has himself appeared in the witness-
box and deposed on oath that no summons was tendered to him by any
process server of the Court. It is a case of oath against oath. In view of the
facts which we have noticed hereinabove clearly the oath of the appellant
was more weighty than the oath of the process server. In the ordinary
course of events, the Court of facts should have discarded the statement of
the process server and believed the statement of the appellant". [See
Paragraph 9 at Page 2372 of the report].

In my opinion, the evidence given by the appellant/tenant from the
witness-box was the deciding factor as the Supreme Court accepted the
evidence of the appellant/tenant given from the witness box to be the
better evidence than the evidence of the process server in that case. The
Supreme Court undoubtedly was dealing with a case of the
defendant/appellant who was seeking an order of setting aside the ex parte
decree against him. The Supreme Court on facts was satisfied that the
defendant had no notice of the date of hearing and that the case before the
Supreme Court was not a mere irregularity in the service of writ of
summons but it was a case of non-service of writ of summons and the
appellant, namely the defendant by his evidence from the witness-box
could prove that there was no due service of writ of summons upon him in
the first place.

Most importantly, however, the defendant in her petition has not
questioned the correctness of the process server's visit to the defendant's
residence for the purpose of service of the writ of summons on 22
December 2005 at all. The defendant has made only one line statement
that the "petitioner has not met any process server", and in the affidavit-in-
reply the defendant, I repeat, has said "that the contents of the report of
the process server should not be taken to be correct without giving" the
defendant "an opportunity to cross-examine the process server through"
her "advocate". (Paragraph 16 at Page 10 of the Affidavit-in- Reply).

In the present case, however, it is only the one sided evidence of the
process server in support of the service of writ of summons upon the
defendant which I have examined very closely and repeatedly and found to
be good evidence of due service of the writ of summons upon the
defendant. No challenge has been thrown to the positive statements made
by the process server in support of his report from the witness-box. The
process server also stated that the person who showed him the way to the
defendant's flat refused to put his signature on the writ of summons since
he was not willing to sign "any Court's paper".
As the truth has the bad habit of coming out any way, the process
server from the witness-box said that not only two ladies appeared behind
the collapsible gate but there were two dogs as well with them who were
barking at him. A process server cannot have the special knowledge of pet
dogs unless he had gone to the premises, or rather to the flat in question
to deliver the writ of summons, how the process server could go on
asserting that there were two dogs who, in fact, chased him and he
somehow escaped. True it is, that he did not mention this incident in the
report as he said that there were several difficulties faced by a process
server every day in effecting service of writ of summons to different parties.
In other words, what he wanted to say was that this was one of the usual
hazards faced by a process server in discharging his duties very often and
that is why these things are not normally mentioned in the reports.

Interestingly enough, however, the defendant did not challenge this
positive assertion on the part of the process server that there could not be
any presence of dogs at the defendant's premises or rather at the flat in
question as the defendant or her family never had any "pet dogs" in the
first place or that the dogs did not belong to the defendant or her family or
that the evidence on dogs was false or untrue "for some reason or the
other". No challenge on this assertion was thrown to the process server in
cross-examination by the defendant's learned Counsel except that the
process server did not mention this incident in the report, to which, the
process server answered, and answered quite honestly, that these things
are not mentioned by a process server as there are many hazards like this
which a process server has to face in discharging his duties practically
everyday.
However, the evidence of the process server from the witness-box that
he was chased by the dogs is rather too serious. By allowing the dogs to
chase the process server at the time when he was discharging his duties or
acting under the authority of "Court", the defendant and the other lady
(her companion), in my opinion, have also rendered themselves liable for
committing criminal contempt.

I repeat that the process server's evidence has remained
uncontroverted and the defendant even by cross-examining the process
server to the fullest extent has not been able to throw any doubt on the
due service of the writ of summons upon the defendant at all.

I also accept the case of the plaintiff that since the defendant has
said that there has not been any service of writ of summons, or rather any
service of writ of summons in the first place, the question whether the copy
of the plaint was served or not becomes immaterial as it is not the case of
the defendant that "even assuming the copy of the writ of summons was
served, but there was no service of copy of the plaint upon her at all. The
case of the defendant in the petition is that the defendant did not receive
the writ of summons nor the copy of the plaint. The defendant has also
said that the defendant did not meet any process server.

The defendant however, I believe, knew full well that merely the
allegation of non-service of copy of the plaint upon the defendant would
not take the case of the defendant too far as far as the present proceeding
is concerned and that is why the petition proceeds on the basis that no
writ of summons was served upon the defendant. The defendant has not
said that since "I was not served with the copy of the plaint I could not file
the written statement" her case is, as aforesaid, she did not receive the writ
of summons nor the copy of the plaint and that is why the defendant could
not enter appearance to contest the suit by filing her written statement.

I, therefore, do not attach any importance to the faint and feeble
attempt on the part of, or rather on behalf of the defendant to suggest that
the report or the declaration of the process server and his evidence from
the witness-box do not prove that a copy of the plaint was also served upon
the defendant with the writ of summons. Even if the defendant were duly
served with the writ of summons without the copy of the plaint, then it
would be obligatory on the part of the defendant to enter appearance to
contest the suit and then apply for a direction for service of the copy of the
plaint to enable the defendant to file the written statement.

In this connection the decision relied upon on behalf of the
defendant, namely Nahar Enterprises V- Hyderabad Allwyn Ltd. & Anr.,
reported in (2007) 9 SCC 466 does not take the case of the defendant
anywhere, as in that case the writ of summons was admittedly served
upon the defendant after the date fixed for his appearance and that is why
the Supreme Court said that it was obligatory on the part of the Court, or
rather the Trial Court to fix another date for hearing for the defendant's
appearance and for filing of the written statement and as such the Trial
Court should have directed that as the writ of summons was admittedly
served after the date fixed for his appearance in the summons, a fresh writ
of summons should be served upon the defendant. A plain reading of
paragraphs 4 and 10 at pages 467 and 468 of the report makes the above
position absolutely clear.

The Supreme Court in that case found that in the summons sent to
the appellant, a particular date, namely 10-10-1988 was fixed for his
appearance but since the writ of summons had not been served upon the
defendant the Court had to adjourn the matter till 02-12-1988. But the
writ of summons was, in fact, served on the appellant on 14 October 1988
after the expiry of the date of appearance of the defendant, namely 10-10-
1988 mentioned in the summons. The defendant was diligent enough to
inform the Trial Court by his telegram and his letter that although he
received a writ of summons after the expiry of the date of his appearance
mentioned in the same, he did not receive any copy of the plaint along with
the writ of summons. The said telegram or the letter of the defendant was
not even replied to. The Court did not issue any further summons fixing
another date for his appearance but since on the adjourned date the
appellant/defendant was absent the Court fixed another date for ex parte
hearing and on the adjourned date the suit was decreed ex parte.

It is on that issue the Supreme Court observed that there was a
manifest error on the part of the learned Trial Court as it failed to take into
consideration that the summons having been served upon the appellant
after the date fixed for his appearance it was obligatory on the part of the
Court to fix another date for his appearance and for filing a written
statement and as such the Trial Court should have directed the plaintiff to
take steps for fresh service of writ of summons and this the Supreme Court
said - "is explicit in view of provisions of Order 9 Rule 6(1)(c) of the CPC".
(See Paragraph 10 at Page 468 of the Report).
I do not think I need to say more as to why I think that the above two
Supreme Court decisions do not come in aid of the case of the defendant
which the defendant has attempted to make out in her petition for
obtaining leave to enter appearance and for filing the written statement for
the purpose of contesting the suit. On the contrary, both the above
decisions in fact make the feeble attempt on the part of the defendant to
somehow make out a case of "non-service or non-receipt of the writ of
summons" even weaker.

Now comes the question as to whether the defendant was duly served
with the writ of summons by mail, or rather by registered post. At the very
outset it must be said that learned Counsel on behalf of the plaintiff has
rightly argued that by virtue of rule 19(a) of Order 5 of CPC which was
brought about by way of amendment of the Code with effect from 1 July
2002 the simultaneous issue of writ of summons for service by post in
addition to personal service has lost its importance as the service by
anyone of the modes, namely the personal service or the service of writ of
summons by post will suffice.
However, since I am fully satisfied that the writ of summons together
with the copy of the plaint was duly served upon the defendant by the
process server on 22 December 2005, my attempt to examine whether the
defendant was also duly served with the writ of summons by registered
post would practically be academic.

In support of the service of writ of summons by post an affidavit of
Sri Amar Kr. Sengupta, "an assistant in the Sheriff's Office, High Court at
Calcutta", affirmed on 29 March 2006 and the receipt acknowledging that
the writ of summons with a copy of the plaint was delivered to the
premises in question and received by one Gopal Roy (Gopal, in short) on
behalf of the defendant was and is relied upon. The said acknowledgement
receipt was signed by Gopal who was admittedly the driver of the father of
the defendant at the time when the writ of summons was delivered to the
residence of the defendant by the postman and received by Gopal, the
driver. However, the defendant has said that Gopal never informed the
defendant or her father or mother or any other family member of the father
of the defendant that he received any copy of the writ of summons or the
plaint filed in the suit, nor Gopal had handed over the copy of the writ of
summons or the plaint in question to the defendant or her mother or her
father or anybody else in the family. Gopal is not a member of the family
and that the defendant had never authorized or empowered Gopal to
accept any writ of summons or copy of the plaint or any other paper or
document relating to any "Court proceedings" . [Paragraphs 18, 19, 20, 22
of the defendant's petition].

On a plain reading of the petition of the defendant it is clear that the
father of the defendant plays a very important role in her life and that the
defendant has the fullest faith and confidence in her father who also looks
after the Courts' proceedings on behalf of the defendant. Admittedly, at
the relevant point of time Gopal was employed as the driver of the father.
It is not the case of the defendant that the father of the defendant or the
defendant had no confidence in Gopal, the driver, otherwise how could he
be trusted as the driver of the father of the defendant. Unless the employer
or the owner of the car, namely the father of the defendant, had the fullest
faith in the person who was employed as his driver, he would not have
been retained as "driver". As far as the question of authority is concerned
the onus was on the defendant to prove that Gopal, the driver had no
authority to accept or was not empowered to accept the copy of the writ of
summons from the postman who went to the defendant's place to deliver
the same.

The writ of summons together with the copy of the plaint was, no
doubt mailed to the correct address, namely the premises of the defendant.
It was also received by a person who held as important position as the
driver of the defendant's father with whom the defendant was living (or
perhaps is still living as well). The father of the defendant, as aforesaid,
has a very important role to play, if not the most important role to play as
far as the Courts' proceedings in which the defendant has interest are
concerned as evident from the statements of the defendant made in
paragraphs 1 to 18 of the petition.

I do not know why the defendant did not even make any attempt to
produce the driver as witness or why did not the defendant herself come
forward and say that she did not receive any copy of the writ of summons
or the copy of the plaint from Gopal, the driver. At no point of time the
defendant was ready to examine Gopal as well. The presumption of due
service of writ of summons together with the copy of the plaint by
registered post is, in my view, overwhelmingly in favour of such service on
the basis of the documents evidencing such service.

I see no reason to hold that the service by registered post is improper
service in the facts and circumstances of this case. I also accept the
submissions on the basis of Section 114 (e) of the Indian Evidence Act as
well as Section 3(e) of the Indian Post Office Act 1898 made by the learned
Counsel of the plaintiff. Section 3(e) of the 1898 Act contains the meaning
of the expression "in the course of transmission by post" and "delivery".
Section 3 (e)(c) says that "the delivery of postal article at the house or office
of the addressee, or to the addressee or his servant or agent or other person
considered to be authorized to receive the article according to the usual
manner of delivering postal articles to the addressee, shall be deemed to be
delivery to the addressee". In this case the postman rightly considered
Gopal, the driver to be authorized to receive the writ of summons for and
on behalf of the defendant.

The presumption, as aforesaid, under Section 114(e) of the Indian
Evidence Act, in the present case, as rightly submitted by the plaintiff's
learned Counsel, is that "the postman had duly served on the person who
could be served in the regular course and in due discharge of his duties".

As rightly contended by the defendant's learned Counsel that the
presumption under Section 27 of the General Clauses Act and under
Section 114(e) of the Indian Evidence Act, 1872 is rebuttable, but I am
afraid that in the facts and circumstances of the case and the evidence on
record the defendant has miserably failed to rebut that presumption. On
the contrary, the defendant has tried to take an extremely technical, or
rather, hypertechnical approach to make out a case that no writ of
summons was served upon the defendant. In order to show that the driver
of the defendant's father had no authority to accept the service of writ of
summons by post, it was pointed out that a servant is not regarded as a
member of the family within the meaning of rule 15 of order 5 of the Code
of Civil Procedure. Indeed, nobody suggests that a driver is to be regarded
as the member of the family of his employer, the question is whether the
driver or the servant is authorized or empowered to accept the delivery of
the writ of summons or the documents regarding Courts' proceedings.

I have already said that the driver of the father of the defendant was
employed as the driver as the father of the defendant and his family
members including the defendant being the daughter had the full
confidence in the person concerned, namely Gopal, otherwise he could not
be retained in the service as driver of the family or driver of the father of
the defendant. The relationship, as I have already said, between the
defendant and the father has been very close and the defendant with her
daughter has been living with her father and mother as the members of the
family of the father since 1999 as evident from the statements made in the
petition itself by the defendant.

I repeat that the defendant has made no attempt to show that the
driver of the defendant's father had no authority to accept the writ of
summons by post on her behalf. She has done nothing to rebut the
presumption, as aforesaid. The defendant could have easily come forward
to give evidence to demonstrate that the driver had no authority and could
have also asked for the driver's presence in Court for examining him.

The feeble attempt on behalf of the defendant to show that Gopal had
no authority or was not empowered to accept the delivery of the writ of
summons from the postman and for such purpose reliance on the
unreported Judgment of this Court on an application for revocation of the
grant of probate by this Court in the goods of Bhagawati Prasad
Chowdhury, G.A. No. 1803 in PLA No. 28 of 2002, is nothing but an
exercise in futility.
In the above case, on facts it was found that there was no proof "that
the citation was received either by the petitioner or by some other persons
said to be Darwan of the house and also another person who were
authorized by him". (See Page 6, the 2nd Paragraph of the Judgment.)

The learned Judge thought that "the propounder executor could have
come with the affidavit of the Darwan", who was the "common Darwan" of
the petitioner as well as the propounder, as the common Darwan allegedly
received the citation. Since no such affidavit of the common Darwan was
on record acknowledging due service of citation the learned Judge was not
prepared to accept the service of citation as due service in the facts of that
case and that is why it was said that the executor propounder had failed to
discharge the burden as he failed to produce any counter-affidavit of the
common Darwan, or "any other person that it was received by him and the
same was handed over to the petitioner". (See the 1st, 2nd paragraphs at
page 6 of the Judgment).

The driver in the present case (if he is not still the driver) was the
driver of the defendant's father, and I have already explained why I think
that both the defendant's father and the family members of the defendant
including the defendant herself should be taken to have the full confidence
in Gopal, the driver, as otherwise he could not have served the family as
driver. It is common knowledge that a person who engages another as his
driver must have the fullest confidence in the person as without such
confidence an important job such as of a driver cannot be entrusted with a
person by the employer, the owner of a vehicle. Similarly, without the
confidence of the family members of the owner of a car in the driver, the
owner cannot retain such driver.
Since in the facts and circumstances of the entire case and on
repeated reading of the evidence on record I am convinced that the writ of
summons together with the copy of the plaint was duly served upon the
defendant both by the process server and by registered post I do not think
I need to go on dealing with the cases cited in support of the plaintiff's case
in detail. Suffice it to say, however, that the decisions amongst others in
United Commercial Bank V- Mrs. Raka Sen(Nandi), AIR 1996 Cal. 242,
and in Basant Singh & Anr. V- Roman Catholic Mission, AIR 2002 SC
3557 relied on by the plaintiff's learned Counsel fully support the stand of
the plaintiff taken in his affidavit used in opposition regarding the due
service of writ of summons upon the defendant.

I must say at the end that I thoroughly disbelieve the case attempted
to be made out in the petition by the defendant for obtaining leave to enter
appearance and file the written statement for contesting the suit instituted
by the plaintiff against the sole defendant. Needless to mention, leave to
enter appearance for contesting a suit cannot be granted in this case to the
defendant as a matter of course in the absence of a genuine non-service of
writ of summons.

Since I have also the feeling that the attempt on the part of the
defendant to obtain leave of this Court to enter appearance and to file
written statement for the purpose of defending the suit has not been an
honest one, inasmuch as the defendant has not really told the truth,
instead has taken a hypertechnical approach to demonstrate that the writ
of summons was not served or delivered either by the process server or by
registered post, the defendant is liable to pay cost to the plaintiff assessed
at 500 GMs which cost the defendant must pay by 11 November 2008 to
the plaintiff or the plaintiff's Advocate on record.

The application is thus dismissed with cost as above.

Let the suit appear as an undefended suit as before for further
hearing on the second Wednesday, 12 November 2008 after the Puja
Vacation.

Let an urgent Xerox certified copy of the Judgment be given to the
parties, if applied for, on the urgent basis.

[MAHARAJ SINHA, J.]