Remarks Such As “Left Address Since 4 To 5 Years Ago, Hence Returned” Not Sufficient To Presume Service Of Notice- Bombay HC
The Bombay High Court while dealing with an appeal relating to presumption of service has held that if the Defendants have left the address, it will not be sufficient to presume service.
A Single Judge Bench of Justice Abhay Ahuja said that “In the present case as noted above, the notice has been returned with the remark “left the address since 4 to 5 years ago, hence returned” and hence it will not support the argument of the Appellants to prove presumption of service.
Advocate Yogesh Pande appeared for the Appellants while Advocate Poonam Mittal appeared on behalf of the Respondents.
The Appellants, in the previous order, were given time to prove that service has been completed for the Respondents. The Appellant placed reliance on the Supreme Court case of Vishwabandhu v. Shri Krishna and Anr., SLP (Civil) D No.1855 of 2020, wherein the Court held that “Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant.”
The Bombay High Court did not agree with the submissions of the Appellant and held that “However, in the present case as noted above, the notice has been returned with the remark “left the address since 4 to 5 years ago, hence returned” and not with the remarks referred to in the aforesaid decision of the Hon’ble Supreme Court.”
Accordingly, the High Court directed the Appellants for fresh service to the Respondent.
Cause Title: Mangesh Satish Vairat and Ors. v. Sangita Tanaji Nanavare and Anr.
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