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Abraham Pillai Vs. Donald Smith and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1906)ILR29Mad324
AppellantAbraham Pillai
RespondentDonald Smith and anr.
Cases ReferredJagannath Brakhbhau v. J.E. Sassoon I.L.R.
Excerpt:
civil procedure code - act xiv of 1882, sections 73, 75, 83, 622--substituted service can only be made when defendant keeps out of the way or where the summons cannot be served in the ordinary way. - .....by delivering or tendering a copy to the defendant in person (sections 73 and 75 of the code of civil procedure), and it is only when reasonable grounds exist for believing that the defendant is keeping out of the way to avoid service or that for other reasons it cannot be served in the ordinary way that substituted service should be ordered (section 82 of the code of civil procedure). temporary absence by itself will not justify a resort to this mode (subramia pillai v. subramania ayyar i.l.r. mad. 419 and if there were reasons for believing that the defendant's absence was not temporary, then an attempt should have been made to effect service on the defendant in person in travancore under section 89 or 90 of the code of civil procedure. in this case service under section 89 could.....
Judgment:

Sankaran Nair, J.

1. The petitioner applied to set aside an ex parte decree obtained against him on the ground that he was not duly served with the summons. It appears from the reports of the Village Munsif and the process-server that they went to the house of the defendant at Anumanthampatti and were told by his wife that he had gone to Peermade coffee garden and that she did not know when he would return. There was no male member to receive the summons. The process-server thereupon affixed a copy of the summons on the outer wall of the house of the defendant.

2. There was no further attempt made to serve the summons on the defendant personally. The suit was heard ex parte and a decree passed against him, which is now sought to be set aside.

3. I am of opinion that the decree must be set aside.

4. Whenever it may be practicable, the service of summons shall be made by delivering or tendering a copy to the defendant in person (Sections 73 and 75 of the Code of Civil Procedure), and it is only when reasonable grounds exist for believing that the defendant is keeping out of the way to avoid service or that for other reasons it cannot be served in the ordinary way that substituted service should be ordered (Section 82 of the Code of Civil Procedure). Temporary absence by itself will not justify a resort to this mode (Subramia Pillai v. Subramania Ayyar I.L.R. Mad. 419 and if there were reasons for believing that the defendant's absence was not temporary, then an attempt should have been made to effect service on the defendant in person in Travancore under Section 89 or 90 of the Code of Civil Procedure. In this case service under Section 89 could have been made as the defendant received at Peermade a registered letter addressed to him by the plaintiffs, after the decree was passed. See Sakina v. Gauri Sahai I.L.R. All. 303.

5. In Sankaralinga Mudali v. Ratnasabhapati Mudali I.L.R. Mad. 325, it was not known where the defendant was nor whether his absence was only temporary and it was accordingly held that there was no prospect of serving him personally within a reasonable time. That case does not therefore apply.

6. The Judge has therefore acted with material irregularity in holding the affixing of the summons to be proper service Jagannath Brakhbhau v. J.E. Sassoon I.L.R. 18 Bom. 606 and his order is therefore reversed, the ex parte decree set aside and he is directed to restore the suit to his file and proceed with it in accordance with law.

7. The costs in this Court will be provided for in the final decree.


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