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Gyanammal Vs. Abdul HussaIn Sahib - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1931Mad813; (1931)61MLJ920
AppellantGyanammal
RespondentAbdul HussaIn Sahib
Cases ReferredVitta Venkatachalam v. Sivapuram Subbayya
Excerpt:
- - before the appeal was heard several attempts were made to serve the plaintiff, and, as they were unsuccessful, eventually an order was made for substituted service on her. the first and best method of service is personal service on the defendant himself; obviously the best method of service is upon the defendant himself. obviously the reason of that is that, if the court is not satisfied that such affixture has been made effectively, a fresh attempt at service must be made. that may be adopted when the court is satisfied that the defendant is keeping out of the way for the purpose of evading service or for any other reason summons cannot be served in the ordinary ways. if substituted service is ordered because the court is satisfied that the defendant is keeping out of the way for.....reilly, j.1. the appellant in this case obtained a preliminary decree for sale on a mortgage, defendant 1 in the suit being the mortgagor and defendant 2 a purchaser of the equity of redemption. defendant 2 appealed to the district judge of chingleput. that appeal was heard ex par be without any appearance having been put in for the plaintiff, and the decree obtained by the plaintiff in the original court was set aside. subsequently the plaintiff made an application to the district judge under rule 21 of order 41 of the code praying that the ex parte decree against her made in the appeal might be set aside. before the appeal was heard several attempts were made to serve the plaintiff, and, as they were unsuccessful, eventually an order was made for substituted service on her. that.....
Judgment:

Reilly, J.

1. The appellant in this case obtained a preliminary decree for sale on a mortgage, defendant 1 in the suit being the mortgagor and defendant 2 a purchaser of the equity of redemption. Defendant 2 appealed to the District Judge of Chingleput. That appeal was heard ex par be without any appearance having been put in for the plaintiff, and the decree obtained by the plaintiff in the original Court was set aside. Subsequently the plaintiff made an application to the District Judge under Rule 21 of Order 41 of the Code praying that the ex parte decree against her made in the appeal might be set aside. Before the appeal was heard several attempts were made to serve the plaintiff, and, as they were unsuccessful, eventually an order was made for substituted service on her. That substituted service appears to have been held sufficient, as the learned District Judge disposed of the appeal against the mortgage decree. But, when the plaintiff came forward with her application under Rule 21 of Order 41, she alleged that she had never heard anything about the appeal and wished to give evidence to establish that. The learned District Judge, however, finding that the formalities for substituted service had been properly carried out and, as his order shows, that there was no allegation before him that they had not been properly carried out in due form, refused to give the plaintiff an opportunity of showing that the appeal had never come to her knowledge. He therefore dismissed her application, and the present appeal before us is against that order of dismissal.

2. We are not now concerned with the evidence which the plaintiff may be able to produce to show that she did not hear of the appeal against her mortgage decree. But it may be noted in passing that prima facie her allegation that she did not know of the appeal does not appear to be a frivolous one. Having obtained a preliminary decree on her mortgage it is not prima facie probable that she would not have contested the appeal, if she had known of it; and it may be also mentioned that, while the appeal against her decree was pending and after it, she was prosecuting the proceedings in the original Court with the object of obtaining a final decree in her suit. However,. 1 do not wish to go any further into that side of the matter than to say that prima facie her allegation that she did not know of the appeal does not appear to be frivolous. Nevertheless the learned District Judge was of opinion that, because substituted service had been ordered and had been effected, he could not allow the plaintiff an opportunity of proving that she did not know of the appeal. And for the respondent here, defendant 2 in the suit, it is urged that that view of the learned District Judge is correct and that, as substituted service had been effected, the plaintiff cannot now say that she was not duly served: if she was duly served within the letter of the law, then she cannot come under K. 21 of Order 41 and ask for the decree made in the appeal against her be set aside.

3. The question what is the exact effect of substituted service in such a case is an important one. Substituted service is a legal method of serving a defendant or respondent, the rules for service on defendants applying also to respondents. The question is whether, when it has been effected with due formality, it is necessarily due service within the meaning of Rule 21 of Order 41, which corresponds to Rule 13 of Order 9 in respect of suits. 1 think the task of answering the question before us will be simplified if we remember that all the rules in the Code relating to service of defendants and respondents are intended to carry out the cardinal principle of our administration of civil justice that no decree shall be made against a party behind his back. There are several methods of service provided. The first and best method of service is personal service on the defendant himself; and in the class of personal service we may include service on the defendant's agent or the manager of his business or a male member of his family residing with him. All that comes within the class of personal service because it may reasonably be inferred, and it is inferrable under the rules, that, if a summons is served upon a defendant's agent or the manager of his business or a male member of his family living with him, it comes to the defendant's knowledge. Obviously the best method of service is upon the defendant himself. But, even if the summons is returned to the Court as having been served on the defendant himself, and he does not appear at the trial of the suit, he is not necessarily concluded. We cannot in all cases say that, because the return is that the summons has been served personally, it has been duly served and so he cannot get an ex parte decree against him set aside. It is open to a defendant in such circumstances to show that the summons in the suit was not really served upon him but upon somebody else, or that what was served upon him was not the summons in the suit, or that it did not give the correct date or some other essential information about the suit, or that it was not accompanied by a copy of the plaint in the suit concerned, so that, although in a sense he was personally served, he was not provided with the knowledge of the claim against him, which is the object of the service. All these and similar allegations are open to him, even if there is a record that he has been personally served. If after due diligence the process-server is not able to serve a defendant personally, either on himself or his agent or his manager or a member of his family, the rules provide that he may affix the summons to the door of the house in which the defendant ordinarily resides or carries on business; and, when that is done and a return to that effect is made, the Court after taking an affidavit from the process-server may hold that that is due service and proceed with the case. There it will be seen there is a reasonable inference which the Court may draw that the defendant really had knowledge of the suit derived from the notice which was fixed on his door. But in that case the rule is that the Court before proceeding with the case must specifically hold that such service is due service. Obviously the reason of that is that, if the Court is not satisfied that such affixture has been made effectively, a fresh attempt at service must be made. But, although the Court uses in its finding in such cases the words ''duly served' according to the rule, that does not prevent the defendant from coming in afterwards and showing that the summons was not duly served by affixture because that affixture really did not bring home to him the knowledge of the claim against him. The order made by the Judge that the service by affixture has been due service, which enables the suit to go on, is an ex parte order, and it cannot be suggested that the defendant in those circumstances cannot come in and show that he never had knowledge of the claim against him, that the inference that it was brought to his knowledge by the affixture is for some reason not a sound inference.

4. But it is not always possible to serve a defendant by affixture to the house where he ordinarily resides or works. Therefore a third method of service is provided, namely, substituted service. That may be adopted when the Court is satisfied that the defendant is keeping out of the way for the purpose of evading service or for any other reason summons cannot be served in the ordinary ways. That method of service is by affixing a copy of the summons to the notice-board of the Court and to some conspicuous part of the house in which the defendant is known to have last resided or carried on business. That is obviously the least satisfactory of all methods of service, only to be used by the Court as a last resort when other means are unavailable. And it is the practice of the Courts to give a long period before the hearing of a case after substituted service has been effected in that way. Inferior as that method of service is to the other methods of service, it will be seen it too provides some slight basis for an inference that the summons really comes to the knowledge of the defendant before the case is heard. If substituted service is ordered because the Court is satisfied that the defendant is keeping out of the way for the purpose of evading service, then the inference that he knows of the case is easily drawn. In other cases the basis of the inference is that the summons is affixed to the house where he last lived or carried on business and to the notice-board in the Court-house, a public place, and therefore it may have come to his notice. The inference is often not at all a strong one. But plaintiffs cannot be kept waiting for their relief indefinitely because the defendants cannot be found, and therefore some such method as substituted service must be provided as a last resort to be used by the Court when other means of service are unavailable. Rule 20 (2) of (). 5 of the Code provides that substituted service by order of the Court shall be as effectual as if it had been made on the defendant personally. That means, as I understand it, that the proceedings can go on after the date fixed in the summons so served. But does it mean, as Mr. Ramakrishna Aiyar for defendant 2 would have us say, that it is necessarily due service, which can never be contested by the defendant at any later date? There is nothing in the rule about it being due service. The word 'due' does not appear in Rule 20 at all. Such service is said to be as effectual as if it had been made on the defendant personally not more effectual. As have mentioned, even if the defendant is served personally, it is open to him to come to the Court and show that that was not really due service because it did not really give him knowledge of the claim against him. If a defendant who is served personally can do that, how can we say that a defendant who is served only by inference through substituted service is shut out for ever from showing that he had no knowledge of the claim against him? I can find nothing in Order 5, which deals with summonses on defendants and respondents, to indicate that that is the intention of the rules.

5. But it has been urged by Mr. Ramakrishna Aiyar that there are certain decisions which support the position which he has taken up. He referred to a decision of Wallace, J., Doraiswami Aiyar v. Balasundarani Aiyar (1926) 52 M.L.J. 477. The only part of that decision which is of interest to us in this matter is, I think, the learned Judge's statement that 'duly served' is not equivalent to 'personally served'; and that is a statement with which none of us I think would care to quarrel. A more important decision in Mr. Ramakrishna Aiyar's favour is that of Madhavan Nair, J., in Narasimha Chettiar v. Balakrishna Chetty (1926) 52 M.L.J. 512, where he made the statement that substituted service is due service for the purpose of the Limitation Act, even though it does not in fact come to the defendant's knowledge. With great respect I may point out that that statement of opinion was made obiter or was at least unnecessary, as, in that case the defendant, before substituted service was ordered, had refused to receive a summons sent to him by registered post under orders of the Court and was found to have been evading summons in the suit, of which he must have had knowledge. The learned Judge quoted as an authority for his opinion a statement made by Shadi Lal, C.J., in Dittu Ram v. Nawab (1925) 7 L.L.J. 448. It is true that the learned Chief Justice made a similar statement; but in that case too it was made obiter. On the other hand in Vitta Venkatachalam v. Sivapuram Subbayya (1927) 54 M.L.J. 448 Srinivasa Aiyangar, J., said that substituted service was not due service for the purpose of the Limitation Act, that is for the purpose of Article 164, which provides the period of limitation for applications to set aside ex parte decrees in original suits. That as a general statement may go too far. But Srinivasa Aiyangar, J., drew attention to an important ; point, namely, that under Article 164 the thirty days period runs from the date of the decree or, where summons was not duly served, from the date when the applicant has knowledge of the decree; and he suggested with great force, I think, that the provision that, when the summons is not duly served, the period runs from the date when the applicant had knowledge of the decree implies that due service within the meaning of that Article is service which brings the claim to the knowledge of the defendant. However there is a decision of a Bench, to which Mr. Ramakrishna Aiyar drew our attention, Shariba Beebi v. Abdul Salami I.L.R. (1927) 51 M. 860 : 55 M.L.J. 565 In that case Phillips and Madhavan Nair, JJ., held that substituted service effected under Order 5 of the Code is as effectual as if it had been made personally and must be deemed 'to be due service within the meaning of Article 164 of the Limitation Act. Now that substituted service is as effectual as if it had been made on the defendant personally cannot be disputed as it is so provided by the rule itself. But there is nothing in the rule, if I may say so with respect, which declares that it must be deemed to be due service within the meaning of the Limitation Act or in any other sense. The learned Judges in that case stated that they differed from Srinivasa Aiyangar, J.s view in the case which 1 have quoted; hut they did not deal with his argument drawn from the reference to 'knowledge' in Article 164 of the Limitation Act. And, if I may say so with very great respect, the matter was not fully discussed by them. With great respect I venture to differ from their view that substituted service must always be deemed to be due service within the meaning of Articles 164 and 169 of the Limitation Act or Rule 13 of Order 9 or Rule 21 of Order 41 of the Code. I see nothing in the rules to prevent a defendant against whom an ex parte decree has been made from showing, if he can, that he has not been duly served in the sense that knowledge of his opponent's claim has been brought home to him, even though the formalities of substituted service have been carried through. As I understand the matter, due service within the meaning of Articles 164 and 169 of the Limitation Act and Orders 9 and 41 of the Code is not service which is technically and formally correct as a basis for proceeding ex parte, but service which has really been effective, which has achieved the object of service by bringing the claim against him to the knowledge of the defendant or respondent. Substituted service may be such service; but we know that often it. is not so. Nevertheless we are asked to say that, when substituted service is carried out in the prescribed form, it must invariably be held to be clue service. It would be a very extraordinary thing if the most unsatisfactory of all methods of service, substituted service, where the inference that the defendant has knowledge of the claim against him is never strong and often almost entirely absent, should somehow be turned into the most effective of all services, a service which the defendant can never dispute, which must bind him for all time, although in fact and in truth he. has never had any knowledge whatever of the proceedings against him. I venture to think that the decision in Sharibo, Beebi v. Abdul Salam I.L.R. (1927) 51 M. 860 : 55 M.L.J. 565 goes too far and would lead to very great difficulties and injustice. The rules about service should, I think, be interpreted as a whole and must be read in the light of the fundamental principle that we should never make a decree against a man behind his back, a principle which, so far as I can see, they are intended to carry into effect, not in any way to supersede or abrogate.

6. In my opinion therefore the plaintiff in this case was entitled, when she came before the District Judge under Rule 21 of Order 41 alleging that defendant 2's appeal had never come to her knowledge, to prove her statement, if she could, in spite of the fact that substituted service on her had been ordered and, as the learned District Judge found, had been effected with all due formality. In my opinion this appeal should be allowed and the plaintiff's application should be remanded to the District Judge for fresh disposal after allowing her an opportunity to produce such evidence as she may have. Defendant 2 of course should also be allowed to offer such evidence as he may wish and to raise any legal objection regarding limitation or otherwise. Costs of this appeal will abide and follow the result and be provided for in the revised order of the District Court.

Anantakrishna Aiyar, J.

7. The appellant in this appeal was respondent in Appeal No. 114 of 1925 on the file of the District Court, Chingleput. Substituted service of notice of that appeal was effected so far as the present appellant was concerned. That appeal was heard ex parte in her absence, and was allowed, with the result that the preliminary mortgage decree which she had obtained in her favour in the Trial Court in O.S. No. 201 of 1922 on the file of the Trivellore Munsif's Court was reversed by the decree in Appeal No. 114 of 1925, and her suit was dismissed. On the allegation that she was not served with any notice in that appeal, and that she became aware of the decree passed in that appeal only within a few days prior to her application, she applied under Order 41, Rule 21, Civil Procedure Code, for the rehearing of the appeal. Her application was dismissed by the learned District Judge of Chingleput, and against that decision she has preferred the present Civil Miscellaneous Appeal.

8. On behalf of the appellant great stress was laid on the fact that she had obtained a preliminary decree in the suit for money due on a mortgage executed by the first defendant, that the purchaser of the equity of redemption--the second defendant--had appealed against that preliminary decree, and that there was no reason to suppose that she would have omitted to defend the appeal in case she had notice of the same in the circumstances. But, in my view, the question for our decision now is not whether she had a good case on the merits of the appeal then pending, but whether she has complied with the conditions imposed by law in respect of her present application to re-hear the appeal. Under Order 41, Rule 21, Civil Procedure Code, she must satisfy the Court that the notice of appeal was not duly served on her or that she was prevented by sufficient cause from appearing when the appeal was called on for hearing. Her allegation in effect is that the notice of appeal was not duly served on her. Under Article 169 of the Limitation Act, the period of limitation for an application for the re-hearing of an appeal heard ex parte is thirty days from the date of the decree in appeal, or where notice of the appeal was not duly served, when the applicant has knowledge of the decree.

9. In considering the question whether notice of appeal was 'duly' served on her or not, we have to be guided by the provisions of Order 5, Civil Procedure Code. Personal service (O. 5, Rule 12), and, in cases where the defendant cannot be found and has no agent empowered to accept service of the summons, service on any adult male member of his family residing with him (O. 5, Rule 15), and--where the defendant or his agent or such other persons as aforesaid refuses to sign or where the; serving officer cannot after using all due and reasonable diligence find the defendant and there is no agent or other person on whom service could be made--service by affixing a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides, ... (O. 5, Rule 17)--these are the principal, primary, and ordinary modes of service prescribed by the Code; and under Order 5, Rule 19, the Court is empowered in cases of returns under Order 5, Rule 17, to declare that the summons has been duly served. When those methods fail, then under Order 5, Rule 20, where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reasons, summons cannot be served in the ordinary way, the Court is empowered to order the summons to be served by affixing a copy thereof in some conspicuous place in the Court house, and also upon some conspicuous part of the house, if any, in which the defendant is known to have last resided, or in such other manner as the Court thinks fit. This is what is called 'substituted service of the summons,' and. under Sub-clause (2) of Rule 20, 'service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.'

10. The learned District judge did not dispose of the application for re-hearing filed before him on the merits; but has, as I understand his judgment, dismissed it on the ground that the formalities prescribed for substituted service having been followed, her application has necessarily to be dismissed. To use the learned Judge's own words:

The petitioner contends that she heard nothing about the appeal until the appellant began to execute his decree. I am unable to accept this as a sufficient reason for ordering a re-hearing of the appeal. The petition contains no allegation of fraud and no allegation that the formalities prescribed for substituted service were not strictly followed, nor does' it in fact appear that there was any irregularity. In the circumstances, I decline to grant the petitioner's request for an adjournment to produce evidence that she was in fact ignorant of the proceedings.

11. In paragraph 4 of the petitioner's affidavit in support of her application for re-hearing, she stated that she was not served with any notice in the appeal, that she was therefore not able to appear at the hearing of the appeal, and that she came to know of the decree in the appeal only within a few days of her application. It seems to me that the Court has first to consider whether notice of the appeal had been duly served on her within the meaning of Order 41, Rule 21 read with Order 5, Civil Procedure Code, having regard to her allegations.

12. Exigencies of litigation in Court require that in order to bring proceedings pending in a Court to a termination within a reasonable time, the rules regarding service of notice on the respondent or the defendant should include not only those forms of service--viz., personal service, service on agent or other adult male member living with him, or affixing notice on the house in which he resides at the time--from which knowledge could be reasonably imputed to the defendant of the proceedings in question, but also other forms of service which though less efficacious for the purpose of imputing such knowledge to the defendant, have, owing to the. necessities of the case, to be resorted to in order to bring the proceedings to a termination. These latter modes will fail in their object, unless they be declared to be as effectual as if the same had been made on the defendant personally for the purpose of going on with the proceedings in Court; and that is what is enacted by Order 5, Rule 20, Sub-clause (2). it is significant that the legislature has not expressly declared that 'substituted service' is 'due service.'' The words 'duly served' occurring in Order 5, Rule 19 are not used in Rule 20, Clause (2). Does the statement in Sub-clause (2) of Rule 20 that 'substituted service shall be as effectual as if it had been made on the defendant personally,' make such service 'due service' in all cases and necessarily? In my view, the same does not necessarily follow. In cases where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, and therefore the Court orders substituted service, then, there is no difficulty in treating substituted service in such circumstances as due service. Ex hypothesi the defendant is aware of the proceedings- in such cases, and is keeping out of the way for the purpose of avoiding service; and no injustice would be done to him in the circumstances, and he has only to thank himself for any inconvenient results that might follow. But substituted service could be ordered in various other cases also. The plaintiff might act bona fide. There might be no fault to be found with the defendant's conduct either, in the circumstances. Yet serious injustice would result if one were to accept the view that if the formalities are gone through, then substituted service should be held to be due service in all such cases and for all purposes. Even in the case of personal service, one can imagine various circumstances which might not make it due service. To give substituted service the effect contended for, is in effect to give it greater efficacy than even personal service: orders are passed in the absence (necessarily) of the defendant in such cases, and the materials before the Court are often very scanty, and the plaintiff himself could not often personally vouch for the accuracy of the allegations. In these circumstances, 1 think it was open to the petitioner (the appellant before us) to prove, if she could, that the notice of the appeal was not duly served and that she had no knowledge of the appeal at the time.

13. We were pressed by the learned Advocate for the respondent with three decisions of this Court, reported in Doraisivami Aiyar v. Balamndaram Aiyar (1926) 52 M.L.J. 477, Narasimha Chettiar v. Balakrishna Chatty (1926) 52 M.L.J. 512 and Shariba Beebi v. Abdul Salam I.L.R. (1927) 51 M. 860 : 55 M.L.J. 565. There is nothing really in the first of these cases necessarily against the view 1 am suggesting; the observations in the second of the cases are only obiter; the third case requires more respectful consideration. The judgment of the learned Judges does not contain any real discussion on the question. The arguments in Vitta Venkatachalam v. Sivapuram Subbayya (1927) 54 M.L.J. 448 were met only by a reference to Sub-clause (2) of Order 5, Rule 20 and the implications that follow from the last clause of Article 164 (also Article 169) of the Limitation Act have not been duly considered. The view taken by the learned Judges would lead to the conclusion that 'whenever a defendant is served according to any of the rules of the Procedure Code, it could never be held that there was no due service.' This view would, in my opinion, lead to injustice to defendants in many cases where they could not be said to be in default in the ordinary acceptation of the term. It should further be noticed that the learned Judges finally remanded the case before them for the trial of the question whether substituted service was duly effected in that case or not. In the present case also, the appellant--in the argument before us--complained that the substituted service was not duly effected and that she was residing at St. Thomas Mount, and not in Georgetown as was represented by the second defendant--appellant--in the main appeal in connection with the substituted service of notice of that appeal in the Appellate Court.

14. In the circumstances of this case, I think that the learned District Judge ought to have given an opportunity to the petitioner--(appellant before us)--to substantiate her contention that there was no due service of the notice, and that she had no knowledge of the appeal except a few days prior to the date of her present application to the District Court.

15. I therefore agree that this appeal must be allowed, and C.M.P. No. 697 of 1926 remanded to the District Court for fresh disposal. It would be open to both parties to let in evidence in support of any pleas available to them. Of course I express no opinion at all on the merits of the petition.

16. Costs of this appeal will abide and follow the result and be provided for in the revised order of the District Court.


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