1. This is a summary suit, and the question that arises is whether the defendant has been duly served. I have before me an affidavit of the special bailiff and also of a clerk in the employment of the plaintiffs' firm, and the two deponents depose that they went to the place of residence of the defendant and there served the writ of summons upon him by delivering and leaving with the defendant a duplicate writ of summons and also a copy of the plaint. Thereafter the special bailiff requested the defendant to sign an acknowledgment of such service on the original writ of summons, but the defendant refused to sign such acknowledgment. Thereupon the special bailiff requested the defendant to hand back to him the duplicate writ of summons and the copy plaint so as to enable the special bailiff to affix the same on a conspicuous part of the place of his residence, but the defendant refused to do so and ran away. As the special bailiff had no other copy of the summons with him, it was impossible for him to affix a copy of the summons on the outer door of his house.
2. The question is whether under these circumstances proper service has been effected on the defendant. Under Order V, Rule 17, of the Civil Procedure Code, 1908, where the defendant or his agent refuses to sign the acknowledgment, the serving officer has to affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides. It will be noticed that this provision is mandatory. But this rule assumes that the serving officer has a copy with him which he can affix on a conspicious part of the defendant's residence. The question that arises is whether this rule is to be given effect to if the defendant by his own conduct renders it impossible for the serving officer to affix the copy of the summons on a conspicuous part of his residence, In this case it is clear on the affidavit that the copy of the summons was given to the defendant and he ran away with it thus rendering it impossible for the serving officer to affix it on the building in which the defendant resides.
3. A similar point arose for the determination of the appellate Court in the Patna High Court in Nageshwar Bux Rai v. Bisesutar Dayal Singh I.L.R.(1923) Pat. 236. In that case too the copy of the summons was given to the defendant who refused to grant a receipt for the summons and retained it. Mr. Justice Jwala Prasad in his judgment says (p. 242) :-
Therefore when the defendant took the summons on the plaint, the peon had no other copy to affix upon the outer door or other conspicuous part of the house. If the defendant had refused to take the summons and to sign the acknowledgment, in that case the peon would have had a copy of the plaint and the summons to be affixed upon the house of the defendant. The defendant by his conduct rendered it impossible to have the copies affixed on the house and he cannot be permitted to take advantage of his own wrong and to plead that the omission rendered the service invalid.
4. Mr. Justice Foster points out in his judgment that under circumstances, like this the only way to comply with Rule 17 of Order V would be for the serving officer to be sent out with a spare copy of the summons for affixing it to the house in anticipation of the contumacious conduct on the part of the defendant. This case was considered by Mr. Justic(1928) 31 Bom. L.R. 424 Mirza in Grama v. Bombay Steamships . In that case the copy of the summons was left on a table in the defendant's house when he refused to accept service, and Mr. Justice Mirza held that that was not a proper compliance with Order V, Rule 17. It will be observed that in that case there was nothing to prevent the serving officer from taking the copy from the table and affixing it to the residence of the defendant. The case of Nageshwar Bux Rai v. Biseswar Dayal Singh was cited before Mr. Justice Mirza, and the learned Judge distinguished it on the ground that the facts reported in that case were very different from the facts in the case before him.
5. I think that the principle laid down in Nageshwar Bux Rai v. Biseswar Dayal Singh is the correct one which I ought to follow. It cannot possibly he in the mouth of the defendant to urge that the service effected upon him is not proper when by his own conduct and default he makes it impossible for the serving officer to carry out the provisions of the law as laid down in Order V, Rule 17.
6. I, therefore, hold that the service has been properly effected and I will proceed with the suit.