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Abbas HussaIn Vs. Ashfaq Ahmad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.282
AppellantAbbas Hussain
RespondentAshfaq Ahmad and ors.
Excerpt:
.....in the course of two or four..........was the 3rd of december, 1908. the process-server who was charged with the service of process on abbas husain, went to the village in the district of muzaffarnagar where abbas husain lives. he could not find the defendant or any agent empowered to accept service of summons or any person upon whom service could be made. he then came back to the court and again made a second attempt to effect personal service upon the defendant. it appears from the report which is endorsed upon the process, that he did make some attempt to ascertain where the defendant might be found, for he reported that the defendant had gone for medical advice to delhi. the court under section 82 of act xiv of 1882, examined the process-server, ordered upon the application of the plaintiffs that substituted service be.....
Judgment:

1. The facts out of which this appeal arises are as follows: The respondents to the appeal instituted a suit for declaration of title to certain landed property on the 29th of October, 1908. The defendants to that suit were two in number, one of whom was Syed Abbas Husain, the appellant before us. The date fixed for the hearing of the suit was the 3rd of December, 1908. The process-server who was charged with the service of process on Abbas Husain, went to the village in the district of Muzaffarnagar where Abbas Husain lives. He could not find the defendant or any agent empowered to accept service of summons or any person upon whom service could be made. He then came back to the Court and again made a second attempt to effect personal service upon the defendant. It appears from the report which is endorsed upon the process, that he did make some attempt to ascertain where the defendant might be found, for he reported that the defendant had gone for medical advice to Delhi. The Court under Section 82 of Act XIV of 1882, examined the process-server, ordered upon the application of the plaintiffs that substituted service be effected and fixed a fresh date for the appearance of the defendant. For the third time the process-server went to the village and affixed a copy of the summons upon the house where the defendant lived. The defendant did not appear and on the 20th of March, 1909, a decree was passed against him ex parte. His co-defendant who put in an appearance admitted the claim. Abbas Husain, after this, applied to the Court to have the ex parte decree set aside. His application was Supported by affidavit which, as is unfortunately so frequent with affidavits that are taken in the moffassil, contained vague and indefinite information. The defendant did not say in the affidavit when he returned to the village. The affidavit carefully avoids that point, but it does state that on the 21st of March, 1909, Abbas Husain came to know of the ex parte decree that had been passed against him. This date given by him is very significant.

2. The Court below was satisfied that Abbas Husain did know of the existence of the suit and was also satisfied that he had been keeping out of the way on purpose. It accordingly refused to set aside the ex parte decree. In appeal here it is contended that the serving officer was not jutisfied in affixing a copy of the summons on the door of the defendant's house, that his return did not show that he could not effect personal service after using all due and reasonable diligence and that there was no evidence on the record that the appellant knew of the institution of the suit. In support of these points we are referred to Sakina v. Gauri Sahai 24 A. 302, Bhomshetti Jinappashetti v. Umabai 21 B. 223 and lastly to Abrahm Pillai v. Dondald Smith 29 M. 324. None of these cases are exactly in point. The action taken by the process-server was fully warranted by law. He could not find the defendant or any person on whom service could be effected on the defendant's part. On this he did exactly what the law directed him to do, namely, he affixed a copy of the summons on the door of the house in which the defendant ordinarily resided and made a report of what Tie had done. The Court, from this report, appears to have been satisfied that there was reason to believe that the defendant was keeping out of the way and ordered substituted service; under Order 5, Rule 20, Clause (2) this service is as effectual as personal service. In the Allahabad case, the peon who was charged with the service of process was informed that the person, he was in search of, had gone to a village in a neighbouring district. It is not for us to enquire how far a process-server would have been acting rightly in going from the district of Moradabad into the district of Bulandshahr; but the process-server in the case before as was most certainly not authorised to go into the province of the Punjab and certainly could not be expected to hunt for a person when the only address given was that the person was somewhere in the great town of Delhi. It would be putting undue strain upon the words 'due and reasonable diligence' to hold that the process-server in this case has been or could be expected to search for a person when the only address given was that the person, a stranger in Delhi, was in Delhi. In this case we hold that the process-server acted perfectly rightly in affixing a copy of the summons on the house where the defendant ordinarily resided In the Bombay case, the process-server was told that the person he was in search of, had gone to a neighbouring village and would return in the course of two or four days. He did not go to that neighbouring village nor did he wait for the return of the person to his house. He certainly was not using due and reasonable diligence. The Madras case differs from the present case in that apparently the Court took no action upon the report being made to it that the defendant could not be found. The Court, when a report of this kind is made to it, is required by law either to, declare that the summons has been duly served or order such service as it thinks fit. The Court of Small Causes at Madras adopted neither procedure in this case the Court did enquire into the circumstances and did make an order for substituted service. We are not prepared to doubt the finding of the learned Additional Judge that Abbas Husain did knew of the existence of the suit. The very fact that he knew of the ex parte decree on the 21st of March, when that decree had been only passed on the 20th of March, certainly supports the finding of the learned Judge. We see no cause for interfering and dismiss the appeal with cost.


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