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Thoyammal and anr. Vs. K.A. Rathnavelu Nadar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported inAIR1927Mad113; (1926)51MLJ714
AppellantThoyammal and anr.
RespondentK.A. Rathnavelu Nadar
Excerpt:
- - it is contended before us that the learned judge did not record a finding that the service was good and that he did not take evidence as regards the allegations of the petitioners that they were not aware of the affixture of the summonses to the door of their houses and that they came to know of the filing of the suit only on 2nd january, 1926. the learned judge would have done well to have made a thorough enquiry into the allegations of the petitioners and satisfied himself that they were served before declaring the service to be good. if the legislature wanted the service only to be good service, then the wording should have been 'after due service' or 'after proper service on him of the summons......to interfere with his order on this ground.2. under section 9 of the act the service should be personal service. the relevant portion of the section is 'within 15 days after the service on him of summons apply to the court,' etc. the expression 'service on him of summons' we think means that the service should be personal service. no doubt in the case of summonses under the civil procedure code and under the presidency small cause courts act the service need not be personal. but taking into consideration the nature and the scope of act iii of 1922 and the fact that the defendant will have no opportunity of applying under section 9 if he does not make an application within 15 days, we think that the expression 'service on him of summons' can only mean personal service. no doubt we are.....
Judgment:

1. This is an application to revise the order of the Second Judge of the Court of Small Causes, Madras, dismissing an application of the petitioners under Section 9 of the Madras City Tenants Protection Act (III of 1922). The petitioners are tenants. The respondent filed an ejectment suit and the summonses in the suit were fixed to the houses of the. petitioners as it was said that they had gone out. This was on 21st December, 1925. The petitioners filed their application under Section 9 on 6th January, 1926. On objection by the respondent the application was dismissed as being out of time, for under Section 9 the application has to be made within 15 days after the service of summonses. It is contended before us that the learned Judge did not record a finding that the service was good and that he did not take evidence as regards the allegations of the petitioners that they were not aware of the affixture of the summonses to the door of their houses and that they came to know of the filing of the suit only on 2nd January, 1926. The learned Judge would have done well to have made a thorough enquiry into the allegations of the petitioners and satisfied himself that they were served before declaring the Service to be good. But we do not propose to interfere with his order on this ground.

2. Under Section 9 of the Act the service should be personal service. The relevant portion of the section is 'within 15 days after the service on him of summons apply to the Court,' etc. The expression 'service on him of summons' we think means that the service should be personal service. No doubt in the case of summonses under the Civil Procedure Code and under the Presidency Small Cause Courts Act the service need not be personal. But taking into consideration the nature and the scope of Act III of 1922 and the fact that the defendant will have no opportunity of applying under Section 9 if he does not make an application within 15 days, we think that the expression 'service on him of summons' can only mean personal service. No doubt we are aware of the difficulties that the plaintiff or any other landlord may encounter on account of the avoidance of service by the tenants, but that would be no ground for not giving the words of Section 9 the plain meaning that they are capable' of bearing. If the legislature wanted the service only to be good service, then the wording should have been 'after due service' or 'after proper service on him of the summons.' In this view of Section 9 of the Act we hold that the petitioners were not served with summonses in the suit and therefore their application of 6th January, 1926 was not out of time. We set aside the order of the learned Judge and direct him to restore the application to file and deal with it according to law.

3. The petitioners are entitled to the costs of this application. The costs of the suit will be provided for in the decree that may be passed by the Judge.


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