1. The defendants contend that the summons was not properly served. Shankar Ramkrishna Khopkar, the proprietor of the defendant firm, by his affidavit has stated that on December 22, 1927, the plaintiff accompanied by another person, who presumably was the Sheriff's bailiff, attended at his place of residence where the bailiff showed him a summons. Mr. Khopkar Hold the bailiff that he was going out of Bombay and asked him to take the summons to the office of the company at Mandvi. Mr. Khopkar then left to perform certain morning ablutions. On his return he found that the plaintiff and the other person had left and the duplicate summons was lying on a teapoy in his room. He picked it up and sent it to the office of the limited company which has taken over the assets and liabilities of the defendant firm. The plaintiff in his affidavit has stated that on December 21, 1927, when he accompanied the special bailiff to the residence of Mr. S.R. Khopkar at Matunga for the service of summons, the bailiff gave Mr. Khopkar the duplicate writ of summons, showed him the original, and asked him to sign the acknowledgment on the summons, when Mr. Khopkar asked the bailiff to go to the company's office. Mr. Khopkar, according to the plaintiff, read the summons but refused to sign the acknowledgment. He threw away the summons and hurriedly went inside the house. The special bailiff thereupon affixed the duplicate writ of summons on the outer door of Mr. Khopkar's place of residence. The special bailiff Nathalal Ishwarlal. Mankad is a clerk of the plaintiff's attorneys. In his affidavit of service of the writ of summons he has inter alia stated that he affixed the duplicate of the writ of summons on the outer door of Mr. Khopkar's residence. To the same effect, is the endorsement made on the summons by the Sheriff. This endorsement on the summons was made by the Sheriff presumably on information given to him by the special bailiff. The endorsement inter alia states that a duplicate copy of the summons was affixed on the outer door of the defendant's place of residence.
2. Looking at the duplicate copy of the summons which has been produced by the defendants from their file, I find that it bears no sign of having been affixed to the outer door of the residence of Mr. Khopkar or to any other part of his residence. The two holes it bears are the result of the file from which it has been produced. The appearance of the duplicate copy, in my opinion, is an important circumstance in the case which supports Mr. Khopkar's version of what occurred at his residence on the occasion of the bailiff's visit. Mr, Khopkar's affidavit is further supported by the correspondence which ensued between the limited company and the plaintiff's attorneys on the day following the alleged service of summons. I feel no hesitation in disbelieving the statement of the special bailiff and the plaintiff that the duplicate summons was affixed to the outer door of Mr. Khopkar's residence.
3. Mr. Mehta has argued that under Order V, Rule 17, of the Code, the duplicate summons need not be affixed to the outer door. It would suffice if it is affixed to some other conspicuous part of the house in which the defendant resides. He contends that leaving the duplicate summons on the teapoy of the defendant's residence would comply with the requirements of Order V, Rule 17, This contention seems to overlook the importance to be attached to the term 'affixed' appearing in Order V, Rule 17. If a duplicate of the summons is merely left on a teapoy, it cannot, in my opinion, be said to be affixed to the teapoy.
4. Mr. Mehta has further relied upon the case of Nageshwar Bux Rai v. Biseswar Dayal Singh I.L.R(1923) . 3 Pat. 236. The ruling in that case is based on facts which are clearly distinguishable from the facts of the present case. In that case the defendant had accepted the duplicate summons and had thereby prevented the bailiff from affixing it to his outer door. He had refused to sign the original summons and had set up the plea that the summons had not been properly served. What the Court said in that case amounted to this, that the defendant would not be allowed to take advantage of his own wrong. On the materials before me it cannot be contended that Mr. Khopkar did anything to prevent the bailiff from affixing the duplicate summons to the outer door or some other conspicuous part of his residence. Indeed it is conceded that Mr. Khopkar threw away the duplicate summons and that the bailiff picked it up.
5. I am of opinion that the requirements of Order V, Rule 17, have not been complied with, and the ex parte decree should be set aside.
6. [The rest of the judgment is not material to this report.]