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Report No. 140 Chapter VI Recommendations 6.1. Possible solution.- We are aware that it is not easy to evolve a perfect solution to the problem considered in this report and it is possible that any solution which might be thought of by way of substitution for the present law, may create its own controversies. Nevertheless, we cannot overlook the fairly large number of reported cases in which injustice might have resulted by reason of a fraud practised with the help of a dishonest postman or a lapse on the part of an honest postman in tendering the article to a wrong person, but for the redress granted by the High. Courts, and there might be many more similar cases, which are not reported, because they did not reach the High Court or did not raise any question of law. In our view, it is desirable that an amendment should be thought of. And it appears to us that the best course would be to substitute in place of the mandatory provision contained at present in Order 5, rule 19A a provision that leaves it to the discretion of the Court to declare whether refusal should be deemed to be an equivalent of service. It is true that even if the court is given a discretion in the matter i.e., a discretion to draw or not to draw a presumption of service on the defendant, (on the basis of refusal to accept service as recorded by the postal employee), hardship may still arise. But one should not overlook the fact, that if the drawing of the presumption is mandatory (as at present), then the chances of hardship arising are magnified.    |
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