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Nathu Ram Vs. Salim Abdul Karim - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All165
AppellantNathu Ram
RespondentSalim Abdul Karim
Excerpt:
.....by this court, an ex parte decree cannot be set aside merely on the ground of irregularity in the service of summons, if the court is satisfied that the defendant knew or but for his wilful conduct, would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim. , and similarly substituted service can only be resorted to if the attempt to effect service in the first two modes has failed. it is further provided by order 5, rule 16 that when service is effected in the first mode noted above it is the duty of the process server to take the signature of the person to whom the summons is delivered or tendered to an acknowledgment of service endorsed on the original summons. there is no escape from the conclusion therefore that the service..........an application for the restoration of a suit filed by the defendant-applicant under order 9, rule 13, civil p.c. it cannot be disputed that the provisions of order 9, rule 13, civil p.c., are disjunctive; and to entitle a defendant to have an ex parte decree set aside he has to satisfy the court either that the summons was not duly served on him or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. it is further to be noted that, in accordance with the proviso added to rule 13 by this court, an ex parte decree cannot be set aside merely on the ground of irregularity in the service of summons, if the court is satisfied that the defendant knew or but for his wilful conduct, would have known, of the date of hearing in sufficient time.....
Judgment:
ORDER

Iqbal Ahmad, J.

1. This application in revision is directed against an order of the Small Cause Court Judge of Aligarh rejecting an application for the restoration of a suit filed by the defendant-applicant under Order 9, Rule 13, Civil P.C. It cannot be disputed that the provisions of Order 9, Rule 13, Civil P.C., are disjunctive; and to entitle a defendant to have an ex parte decree set aside he has to satisfy the Court either that the summons was not duly served on him or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. It is further to be noted that, in accordance with the proviso added to Rule 13 by this Court, an ex parte decree cannot be set aside merely on the ground of irregularity in the service of summons, if the Court is satisfied that the defendant knew or but for his wilful conduct, would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim.

2. In the present case the date fixed for the hearing of the case was 25th July 1930. On 9th July 1930, the process server delivered a copy of the summons to the defendant-applicant in the Court compound but the defendant refused to sign the acknowledgment and the process server then made a report to that effect to the Court. The process server was examined as a witness in the case and he testified to this fact. It is contended by the learned Counsel for the applicant that the summons was not duly served on the applicant. The object of serving a summons is that the defendant may have knowledge of the institution of the suit in sufficient time before the date fixed for the hearing, so that he may defend the suit, and the procedure laid down for the service of summouses is intended to guard against fraud and ensure that the proper person has been served. There are three modes prescribed by the Code for serving a summons: (1) by delivering or tendering a copy of the summons to the person intended to be served or to his agent or to any adult male member of the family of defendant, (2) by affixing a copy of the summons on the door of the defendant's residence or place of business (Order 5, Rule 17, Civil P.C.); and (3) by effecting substituted service as laid down by Order 5, Rule 20, Civil P.C. It is further clear that all available steps to effect personal service must be made before resort can be had to the provisions of Order 5, Rule 17, Civil P.C., and similarly substituted service can only be resorted to if the attempt to effect service in the first two modes has failed. It is further provided by Order 5, Rule 16 that when service is effected in the first mode noted above it is the duty of the process server to take the signature of the person to whom the summons is delivered or tendered to an acknowledgment of service endorsed on the original summons. If the person refuses to append Ms signature then a copy of the summons is to be affixed to a conspicuous part of the house in which the defendant ordinarily resides in accordance with the provisions of Order 5, Rule 17, Civil P.C. Having regard to the mandatory nature of the provisions of Rule 17 I am not prepared to hold that simply by delivery of a copy of the summons to the defendant the service of the summons is duly made though the defendant refused to append his signature to the acknowledgment of service. On such refusal it is incumbent to effect service in the manner prescribed by Order 5, Rule 17, Civil P.C. I, with all respect, am unable to agree with the decision in Gopaldas Girdharilal v. Islu (1918) 46 IC 277, in which it was held that whenever summons has been delivered or tendered to the defendant personally

the service is complete and no subsequent irregularity by the process...server...such as the omission of the process server to obtain the signature of the defendant can undo it.

3. The learned Additional Judicial Commissioner who decided the case did not take into consideration the mandatory nature of the provisions of Order 5, Rule 17 of the Code. In the present case it is admitted on all hands that on the refusal of the defendant-applicant to sign the acknowledgment no summons was affixed to the door of the defendant's house. There is no escape from the conclusion therefore that the service of the summons was not duly made on the defendant-applicant, but the failure to effect service by affixing a copy of the summons to the door of the defendant's residence was a mere irregularity in the service of summons and simply because of that irregularity the defendant-applicant was not entitled to have the ex parte decree set aside, if it was found that he knew or but for his wilful conduct would have known of the date of the hearing of the suit. In the present case the learned Small Cause Court Judge has found that the defendant-applicant

had notice of the plaintiff's case on and after 19th July 1930.

4. This finding in my judgment amounts to the finding that the defendant had full knowledge of the date fixed for the hearing of the suit and that by the mere irregularity in the service of the summons he was not prejudiced in any way nor prevented from defending the plaintiffs' claim. In view of this finding the order sought to be revised is perfectly correct and I dismiss this application with costs.


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