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Rajendro Nath Sanyal Vs. Jan Meah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal101
AppellantRajendro Nath Sanyal
RespondentJan Meah
Excerpt:
summons, service of - civil procedure code (act xiv of 1882), sections 79, 80--affidavit of service of summons, sufficiency of. - .....of the code, i am desirous of removing that misapprehension.2. section 79 provides that 'when the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. 'then in section 80 it is further provided that, if the defendant or other person refuses to sign the acknowledgment, or if the serving officer cannot find the defendant, and there is no agent empowered to accept the service of the summons on his behalf, nor any other person on whom the service can be made, the serving officer shall affix a copy of the summons on the outer door of the house in which the.....
Judgment:

Jenkins, J.

1. The sufficiency of service comes constantly before the Court in dealing with undefended cases, and as it appears to have been thought that I have laid down a rule of practice on the subject beyond the provisions of the Code, I am desirous of removing that misapprehension.

2. Section 79 provides that 'when the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. 'Then in Section 80 it is further provided that, if the defendant or other person refuses to sign the acknowledgment, or if the serving officer cannot find the defendant, and there is no agent empowered to accept the service of the summons on his behalf, nor any other person on whom the service can be made, the serving officer shall affix a copy of the summons on the outer door of the house in which the defendant ordinarily resides and then return the original to the Court from which it issued, with a return endorsed thereon or annexed thereto stating that he has so affixed the copy and the circumstances under which he did so.'

3. It will be seen, therefore, that (leaving out of consideration the contingency of there being an agent) the primary method of service is by tendering or delivering a copy of the summons to the defendant personally and obtaining his acknowledgment. It is obvious, however, that this mode may fail for one of two reasons: either the defendant may refuse to sign the acknowledgment, or it may be impossible to find him, and accordingly a method of service by affixing a copy of the summons is provided. Apart from refusal to sign there are two necessary conditions to the validity of this mode of service: 1st, the serving officer must have been unable to find the defendant, and 2ndly he must have affixed a copy of the summons 'on the outer door of the house which the defendant ordinarily resides' and return the original to the Court the manner prescribed by the Code.

4. I will shortly deal with these two conditions. For the purpose of establishing that the defendant cannot be found it must be shown that proper effect to find him were made, as, for instance, that the serving officer went to the place or places and at the times at which it was reasonable to expect he would be found. Then to satisfy the second condition it must be shown that the copy was affixed on the door of the house in which the defendant ordinarily resided at the time of service.

5. Whether or not these conditions are established to the satisfaction of the Court must in each case depend on its own particular circumstances. These requirements are prescribed by the Code and not by any rule of practice outside the Code, and having regard to the applications so frequently made under Section 108, I have always thought it necessary to closely scrutinize the mode of service on which reliance is placed. In this particular case I am satisfied that the service was in accordance with the provisions of the Code, and is therefore valid.

6. Attorneys for the Plaintiff: Messrs. Sen & Go.


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