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Mirza Ally Bebanee Vs. Syed Hyder Hoosein - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom449
AppellantMirza Ally Bebanee
RespondentSyed Hyder Hoosein
Excerpt:
practice - setting aside ex-parte decree--substituted service of summons. - - ' in the present case i am satisfied that the defendant was prevented by sufficient cause from appearing when the suit was called on for hearing on the 12th february. they will best be considered when the suit is heard......the house specified in the plaint.2. section 83 of the code of civil procedure provides that 'the service substituted by order of the court shall be as effectual as if it had been made on the defendant personally.' mr. inverarity argued that under this section the court is bound to hold that the summons was served on the defendant personally in bombay on the 4th of february; and as there was plenty of time for a defendant served in bombay on the 4th to appear in court on the 12th, mr. inverarity contended that the court could not consider that the defendant was prevented by any sufficient cause from appearing at the hearing in court on the 12th. but i am not prepared so to interpret section 83. substituted service is made by that section as effectual as personal service: but what does.....
Judgment:

Pinhey, J.

1. By the first clause of Section 108 of the Code of Civil Procedure an application may be made to set aside a decree passed ex parte against a defendant under Section 100, and by the second clause of the section it is provided that 'if it be proved to the satisfaction of the Court that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall pass an order to set aside the decree.' In the present case I am satisfied that the defendant was prevented by sufficient cause from appearing when the suit was called on for hearing on the 12th February. The defendant has sworn in his affidavit in support of the application that he was not in Bombay when the plaint in this suit was filed on the 21st January last, as he went, four months ago, to his native place, Moradabad, in the North-West Provinces, for the recovery of his health, or, at least, for change of air. And it seems from the plaint that the plaintiff was uncertain of the whereabouts of the defendant, even if he did not know that the defendant had gone to Moradabad; for in the plaint he does not describe the place of present abode of the defendant in any way as contemplated by paragraph (c) of Section 50; but he describes the defendant as 'a Mahomedan inhabitant who lately resided in house No. 5, in Ghas Bazaar Street, outside the Fort of Bombay.' On the plaint being filed, containing this description of the defendant, the summons issued in the usual way; and when it was certified to the Court that the defendant was not to be found at the place of last residence mentioned in the plaint, an order for substituted service was taken out in chamber on the 4th February. On that day substituted service of the summons was effected by affixing a copy to the door of the house specified in the plaint.

2. Section 83 of the Code of Civil Procedure provides that 'the service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.' Mr. Inverarity argued that under this section the Court is bound to hold that the summons was served on the defendant personally in Bombay on the 4th of February; and as there was plenty of time for a defendant served in Bombay on the 4th to appear in Court on the 12th, Mr. Inverarity contended that the Court could not consider that the defendant was prevented by any sufficient cause from appearing at the hearing in Court on the 12th. But I am not prepared so to interpret Section 83. Substituted service is made by that section as effectual as personal service: but what does 'effectual' mean? Merely effectual for proceeding with the suit, and nothing more. It does not and cannot mean that substituted service on a man's house in Bombay is equivalent to personal service on that date, nor does it imply the absurd consequence that a man who happened to be shooting in Central India had personal knowledge of what was done at his house in Bombay on the day substituted service was effected. And that no such unreasonable interpretation of Section 83 was contemplated, is clear from the next Section 84, which provides that 'whenever service is substituted by order of Court, the Court shall fix such time for the appearance of the defendant as the case may require.' This section shows that, although substituted service may be ordered in Bombay, the Court is to take into consideration the time necessary for notice of the fact being conveyed to the place where the defendant really is, even if he be in America. Therefore, reading Section 83 with the second clause of Section 108, I have no doubt that the Court can, in such a case as this, hold that, as there is reasonable ground for believing that the defendant was at Moradabad and unaware of the existence of this suit, and, therefore, prevented from appearing when the case was called on for trial, the defendant is entitled to have the ex-parte decree passed against him set aside, and to be allowed to make such defence to the suit as he may have.. I, therefore, order (under Section 108) that the decree passed in this suit on the 12th February be set aside. I make no order as to the costs of this application at present. They will best be considered when the suit is heard. When the suit is tried on its merits in the presence of both parties, it may be found that plaintiff improperly tried to snatch a decree behind defendant's back, or it may be found that the defendant was absent from Bombay because his creditors had made further residence here impolitic. The latter supposition is, however, hardly reconcilable with his return since the 12th February.


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