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Wazir Khan Vs. Naqul Yawar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.163
AppellantWazir Khan
RespondentNaqul Yawar and ors.
Excerpt:
civil procedure code (act xiv of 1882), sections 80, 622 and 652 - rule 28 of high court rules--service of summons on a railway servant--summons not sent through official superior--force of rules made by high court--practice--revision. - - the applicant was a railway servant and when the summons was brought to him he endorsed on it that the summons should have been served through his official superior and refused to receive the summons. it would be better if the rule provided that all such summonses should be served through the official superior unless there was an order to the contrary......summons then brought back the summons without proceeding to affix a copy of it to the house. an ex parte decree was passed against the defendant by the munsif. the defendant applied to set aside the ex parte decree. the munsif refused it. the defendant then appealed to the district judge who refused to interfere with the decision of the munsif. the present application is made to set aside in revision the orders of the courts below. rule 28 of the rules of the 4th of april 1894 provides that summons on railway servants shall ordinarily be served through their official superior and a reasonable time should be allowed for appearance in order that the necessary arrangements for the performance of the duties of the person summoned may be made. this rule is not as definite as it might be. it.....
Judgment:

Richards, J.

The facts out of which this application arises are shortly as follows:A suit was brought against the applicant to recover possession of a certain house. The applicant was a Railway servant and when the summons was brought to him he endorsed on it that the summons should have been served through his official superior and refused to receive the summons. The officer serving the summons then brought back the summons without proceeding to affix a copy of it to the house. An ex parte decree was passed against the defendant by the Munsif. The defendant applied to set aside the ex parte decree. The Munsif refused it. The defendant then appealed to the District Judge who refused to interfere with the decision of the Munsif. The present application is made to set aside in revision the orders of the Courts below. Rule 28 of the rules of the 4th of April 1894 provides that summons on Railway servants shall ordinarily be served through their official superior and a reasonable time should be allowed for appearance in order that the necessary arrangements for the performance of the duties of the person summoned may be made. This rule is not as definite as it might be. It would be better if the rule provided that all such summonses should be served through the official superior unless there was an order to the contrary. However this may be, the practice undoubtedly is to serve Railway officials through their official superior. The object of the rule is quite apparent. The rule is for the benefit of the public. Railway officials cannot leave their duty to attend to summonses without preparations being made for some one to take their place. In my judgment the service effected upon the defendant was really no service at all. A number of cases have been cited to the effect that where the Court entertains a question which it has jurisdiction to entertain, this Court cannot in revision set aside the decision of the Court below merely on the ground that the decision was wrong in law or in fact. Suppose that the Munsif had made an ex parte decree against a defendant who had never been served and that he had refused to set aside the ex parte decree and suppose that the person, against whom that ex parte decree had been made, appealed to the District Judge and the latter were to decide that the defendants had never been served with the summons but still wore to refuse to set the decree aside, I think it can hardly be said that the Munsif and the District Judge would not have acted illegally. In the present case I consider that the defendant was under the circumstances of the case not served at all. If I am entitled to view the case from this aspect, the proceedings in the Court of First Instance wore load ab initio. The Court of First Instance and the lower Appellate Court have completely ignored the rules as to service of officials. These rules are made under the provisions of Section 652, Code of Civil Procedure, and have the force of law. One case was cited in which the Court had given an erroneous decision as to whether or not limitation applied, and it was held that revision did not lie, as the Court had jurisdiction to entertain the question and to come to a decision. Suppose however that the Court had found that limitation did apply but had expressly refused to apply the law of limitation, the question would much more nearly resemble the present case. I think under all the circumstances that this application should be allowed. I accordingly sot aside the orders of the Courts below and remand the case to the Munsif through the District Judge with directions to restore the suit so that the summons may be served in accordance with the provisions of Rule 28. I make no order as to costs.


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