Registered post containing summons is refused by defendant. Effect on service?

When a registered post article containing a summons is tendered to the defendant and he deliberately refuses to accept it, the law does not reward that refusal with impunity. The Code, as it stands after the amendments of 1999 and 2002, treats such refusal as a deemed acceptance — but the legal machinery that converts this refusal into valid service requires careful attention to its preconditions.

The Statutory Framework: Order V, Rule 9(5)

The governing provision is Order V, Rule 9(5), which was introduced by the Code of Civil Procedure Amendment Act, 2002 and came into force on 1 July 2002. The sub-rule provides that when the postal article containing the 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 refused to take delivery when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant.

The language of the rule is significant. It says "shall declare" — meaning once the ingredients are satisfied, the declaration is not discretionary but mandatory. The court is bound to make the declaration.

A built-in safety valve also appears in Rule 9(5) itself: where the summons was properly addressed, pre-paid, and duly sent by registered post acknowledgment due, the declaration must be made even where the acknowledgment has been lost, mislaid, or has not been received by the Court within thirty days from the date of issue of the summons. This provision prevents the defendant from escaping service by the simple expedient of engineering the loss of the acknowledgment card.

Three Essential Conditions

For the refusal to amount to deemed service, three conditions must be present simultaneously. First, the summons must have been properly addressed to the defendant at his correct address. Second, it must have been sent by registered post with acknowledgment due, pre-paid. Third, there must be a postal endorsement by the postman or postal employee that the defendant refused to accept delivery when it was tendered to him. Where any of these elements is missing, the presumption of service simply does not arise. The Andhra Pradesh High Court has held that where neither the postal receipt nor the form containing the address to which the summons was sent by registered post was placed on record, the question of drawing a presumption of service under this rule does not even arise.

A Presumption, But a Rebuttable One

It is important to appreciate that the declaration of due service here rests upon what is, in essence, a legal presumption — and like most presumptions in civil law, it is not absolute. Courts have consistently held that where service is effected by registered post and there is a postal endorsement of refusal, a presumption arises that the packet was served, but that presumption is rebuttable by the defendant giving evidence on oath. If the defendant appears and deposes that he never in fact refused the article, and the plaintiff does not examine the postman to controvert the defendant's version, the presumption may be displaced and an ex parte decree passed on such service would be liable to be set aside.

The Bombay High Court captured this position with striking candour. Macleod CJ observed that service by registered post is at any time a poor substitute for personal service which is directed by the court — it is allowed to litigants as a matter of convenience. Where a defendant appears after the decree and denies receipt of the packet, the court must afford him a re-trial.

The Judicial Concern About Abuse

The Supreme Court has shown considerable sensitivity to the potential for fraud in this area. In a significant three-judge bench decision, Sabharwal J. noted that it is common knowledge that defendants have been avoiding acceptance of summons, while simultaneously warning that there is danger of false reports of service and that courts must be very careful while making orders of deemed service on the basis of an endorsement of refusal. High Courts were specifically directed to consider requiring affidavits setting out the details of events at the time of the alleged refusal, so that the circumstances could be properly scrutinised before an order of deemed service is made.

Role of the Court's Declaration

The court's declaration under Rule 9(5) is not a rubber stamp. The endorsement by the postman alone is not the end of the matter — the court must apply its mind before declaring service due. Rule 19, read with Rule 9(5), implies that the court must satisfy itself that the conditions laid down have been met. As the Kerala High Court has underlined, the acceptance of the service report is a serious and solemn act of court and not a mere formality — and the court's order declaring due service must disclose reasons for accepting the service report.

The Net Position

To state the legal position crisply: when a defendant refuses to accept registered post containing a summons, and the postal article is returned to the court with a postman's endorsement of refusal, the court shall declare the summons to have been duly served, provided the summons was properly addressed, pre-paid, and sent by registered post acknowledgment due. This declaration produces the legal consequence of valid service, allowing the court to proceed. However, it raises only a rebuttable presumption — and if the defendant subsequently appears and challenges the service with credible evidence, the court must inquire further. A blind reliance on the postman's endorsement without judicial scrutiny has been disapproved at the highest level, and an ex parte decree founded on such service remains open to challenge under Order IX, Rule 13, where the defendant can show that he never in fact refused the article.