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Ellappa Naicker Vs. Arumuga Servai and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 677 of 1965
Judge
Reported inAIR1967Mad5
ActsMadras Cultivating Tenants Protection Act; Code of Civil Procedure (CPC), 1908 - Sections 115 - Order 5, Rules 17 and 19 - Order 9, Rule 13
AppellantEllappa Naicker
RespondentArumuga Servai and anr.
Cases ReferredIn Venkatarayanim Varu v. Chinna Bapanna
Excerpt:
.....order set aside. - - but even if the first defendant was in the house at bantra at the time, the question arose whether the service effected at the place was good service upon him under order 5, rule 17, c......respondent was not found. it is admitted that subsequently on the instructions of the clerk of the revenue divisional officer the summonses were affixed on the outer door of the residence of the tenants. the respondents to the application were made ex prate at the hearing on 5-3-1964 and an order for eviction was made. the next day the first respondent in the application for eviction, the petitioner herein came in as the petitioner to have the ex prate order set aside. the counsel are agreed that the provisions of the civil procedure code as to service of summons apply. it is admitted that the tender of the summons so far as the present petitioner is concerned was when he was boarding a bus. as regards the son, there was no serious attempt whatsoever at personal service. however the.....
Judgment:
ORDER

(1) This revision arises out of proceedings under the Madras Cultivating Tenants Protection Act on the refusal of the Revenue Divisional Officer to set aside the order for eviction passed ex prate.

(2) In the application for eviction, the father and son were added as respondents. The present revision petition has been preferred by the father who in fact is the tenant. The son had been made a party respondent. The first summonses on the case to the two respondents were taken by post and returned unserved. That was for the hearing on 19-2-1964. The case was adjourned to 5-3-1964. For this hearing summonses in the ordinary form had been issued. According to the return of service, the first respondent, the present petitioner, refused to receive the summons when tendered on 26-2-1964. It is stated in the return that the second respondent was not found. It is admitted that subsequently on the instructions of the clerk of the Revenue Divisional Officer the summonses were affixed on the outer door of the residence of the tenants. The respondents to the application were made ex prate at the hearing on 5-3-1964 and an order for eviction was made. The next day the first respondent in the application for eviction, the petitioner herein came in as the petitioner to have the ex prate order set aside. The counsel are agreed that the provisions of the Civil Procedure Code as to service of summons apply. It is admitted that the tender of the summons so far as the present petitioner is concerned was when he was boarding a bus. As regards the son, there was no serious attempt whatsoever at personal service. However the Revenue Divisional Officer refused to set aside the ex prate order holding that there has been due service. While originally setting the respondents ex prate, the Revenue Divisional Officer has proceeded in the view that the summonses sent by registered post had been refused by the addresses.

(3) It is now found from the endorsements on the summonses sent by registered post that they were returned as the addressees were not found. That being so, and there having been no attempt at all at personal service so far as the second respondent is concerned, it could not be said that there has been due service by affixture: see Pichai Ammal v. Vellayya Thevar : AIR1963Mad198 .

(4) The second respondent is employed in a Cement Company and goes in the morning and returns in the evening. The peon of the Revenue Divisional Officer, Coimbatore, who has been examined in this case, states that, as the son was not available, at the residence, on instructions of the Court clerk he affixed the summons on the door on 28-2-1964. A similar affixture on the same day is also stated to complete service of summons on the present petitioner. The peon admits that the Moniger had informed him that the son had gone for work in the cement company. So far as the present petitioner is concerned, the evidence of the Monigar is that at about 7 a.m. in the morning on 26-2-1964 at the bus stand the peon came with the summons. The present petitioner was about to board a bus and he identified him to the peon. When the summons was sought to be handed over, the petitioner is stead to have said that he was leaving in a hurry. The peon again tendered the summons but the petitioner is reported to have stated that he was going out on urgent business and he cannot stay to receive the summons. The Village Munsif deposed that on this he made the endorsement that petitioner had refused summons. The learned counsel for the petitioner contends that it cannot be said that there has been any due or diligent attempt at service of summons in the normal manner in this case before service by affixture was adopted,. Summons must be addressed to the defendant at the place where he ordinarily resides or carries on business or works for gain. In Braja Nath v. Surendra Krishna AIR 1918 Cal 179 summons was sought to be served on the party at some place in a different district and service was stated to have been completed by affixture there on refusal of the defendant to accept summons. The evidence as not convincing whether at all the party was in the place where he was stated to have been found when the summons was tendered. After commenting on that evidence, the learned Judges observed:

'But even if the first defendant was in the house at Bantra at the time, the question arose whether the service effected at the place was good service upon him under Order 5, Rule 17, C. P. C. If we assume that the first defendant refused to accept summons sent to him, summons would have to be served in the house in which he ordinarily lived'

Learned counsel relies upon this for his contention that there has been no due tender of service of summons, the tender being at a bus stand when the party was about to board a bus. I do not think that in the circumstances of this case it is necessary to go to that extent. On the facts made out and spoken to by the Village Munsif, and in a way admitted by the peon, who attempted service of summons, it is clear that there had been no such refusal as to warrant service by affixture under Order V Rule 17 C. P. C. and hold it as due service. Admittedly, the affixture was made on the 28th only two days after attempted tender of summons. No diligent effort was made or steps taken in the meantime to serve the petitioner personally. The evidence read as a whole leads one to the conclusion that there has been no proper service on either of the respondents in the application. The need for diligent and honest attempt to serve the parties personally can never be overemphasised. In this case the tenant has been on the land for over ten years. Next day after the ex prate order, he has come to court seeking to have the same set aside. It is extremely unlikely that as contended by the landlord he was evading service.

(5) In this connection reference has to be made to Order V Rule 19 C.P.C. When summons had been merely affixed under Rule 17, Rule 19 requires that on the return of summons under R. 17, the court shall, if the return under the Rule had not been verified by the affidavit of the serving officer, and may, if it had been so verified, examine the serving officer on oath or cause him to be examined by another court touching his proceedings and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons had been duly served or order such service as it thinks fit. In Venkatarayanim Varu v. Chinna Bapanna : AIR1940Mad213 , a Division Bench of this court observed:--

'It is of course desirable that all courts should observe the mandatory provision under Order V, Rule 19 C.P.C., and either declare that summons has been duly served or order such further service as it thinks fit. But we do not think that the absence of such an express declaration will involve as a necessary consequence the finding the summons has not been duly served.'

That was a case where no less than four summonses had been taken out and there was also evidence that the party was aware of the tendency of the suit. In the present case, a perusal of the order earlier passed declaring the petitioner ex prate shows that the relevant considerations had not been kept in mind. If in fact, the peon had been examined, instead of merely depending upon his endorsement, it would have come to the knowledge of the court that there had been no such refusal when the summons was tendered as would warrant affixture under Order V Rule 17 C.P.C. The petitioner was boarding a bus on urgent business in the early hours of the morning and when some paper was tendered to him he said, that he was going on urgent business, and had no time. There was no refusal by him to accept the summons of court duly tendered to him and there was no evidence that he was evading service. I am certain that if these facts had been considered by the Revenue Divisional Officer he would not have concluded that there had been due service by affixture. In the circumstances, despite the order setting the petitioners ex prate as in fact it is not stated that there has been declaration of due service under Order V R. 19 C.P.C. it can properly be held that the declaration of the petitioner as ex prate and the passing of the order ex prate are vitiated by procedural irregularity entitling interference in revision under S. 115 C.P.C. I am taking this view even without taking into consideration the fact that there has not been an attempt at personal service on the second respondent. The second respondent is not a party to this application. Otherwise, the matter would come directly under the proviso to Order IX Rule 13 C.P.C. the application being one for eviction.

(6) In the circumstances, the order of the court below refusing to set aside the ex prate order is set aside. The Revenue Divisional Officer will take O. P. 31 of 1964 on his file and dispose of the same on merits. This revision is accordingly allowed. The parties will bear their respective costs throughout. The records will be sent back to the lower court expeditiously.

(7) Revision allowed.


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