1. This rule is directed against an order of the Subordinate Judge of Darjeeling, dated 8th June 1933, allowing an application of the opposite parties 1 and 2 for setting aside an ex parte decree passed against them Under Order 9, Rule 13, Civil P.C.
2. The rule was issued on only one ground, namely, that the Subordinate Judge wrongly assumed jurisdiction to go into further enquiries as to the date of knowledge of the passing of the ex-parte decree, in view of the fact that the substituted service was due service according to law under Article 164, Limitation Act, and the period of limitation commenced to run from the date of the service. It appears from the order sheet of the learned Subordinate Judge in the suit that on 8th September 1931 the Court recorded the following order:
Summons not properly served. Plaintiffs' advocate asks for summons Under Order 5, Rule 20. Issue summons accordingly. Fix 20th September 1931.
3. On 20th September 1931, the following order was recorded:
Defendants are absent. Summons have been served on them Under Order 5, Rule 20. Two witnesses have been examined on behalf of the plaintiff. Affidavit has also been filed recording service of notice on defendants. Suit is decreed ex parte.
4. Under Order 5, Rule 20, Civil P.C, substituted service by order of the Court shall be as effectual as if it had been made on the defendants personally. It was contended by the learned counsel on behalf of the petitioners that the learned Subordinate Judge was wrong in holding that the substituted service was not due service within the meaning of Article 164, Limitation Act. In support of this contention reliance was placed upon a decision of the Madras High Court in Shariba Beeby v. Abdul Salam, 1928 Mad 815. But in Ram Bharosa v. Ganga Singh, 1931 All 727 it has been laid down by the Allahabad High Court that even though the Court records an order to the effect that substituted service has been effected the proceedings at that stage being ex parte, it would be open to the defendant when he appears later to show that the order was not a proper order and that the method employed was not calculated to effect the purpose of informing the defendant of the institution of the suit. Again in the case of Gyanammal v. Abdul Hussain Sahib, 1931 Mad 813 at, p. 226, Reilly, J., observed as follows:
There are several methods of service provided. The first and the 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 inferable 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 oases 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.
5. It is clear therefore that even though the substituted service may be considered as personal service on the defendants under the provisions of Order 5. Rule 20 and Clause (2), Civil P.C, this cannot preclude the defendants from afterwards showing that in fact there had been no service on him at all and that the order for substituted service was procured on misrepresentation of facts. Order 5, Rule 20 and Clause (2) laid down that for the purpose of passing a decree at that stage the Court can take the substituted service as service upon the defendant personally and nothing more.: It cannot be said that simply because an order is obtained behind the back of the defendants to the effect that service was effected Under Order 5, Rule 20 of the Code that would preclude the defendant from afterwards showing that the order for substituted service was not all proper and that if real facts had been placed before the Court at the time,when the order was obtained, the Court would not have ordered substituted service. We are therefore of opinion that the learned Judge was justified in entering into the merits of the application in spite of the order dated 29th September 1931 to the effect that the substituted service was effected on the defendants under Order 5, Rule 20, CIause (2), Civil P. C.
6. This being the only ground on which the rule was issued the rule should be discharged. The learned counsel appearing for the petitioner however placed the facts of the case before us in order to show that there has been a failure of justice in this case. It is therefore desirable that we should say a few words on the merits of the case.
7. It is admitted now that these ladies had never resided at Naxalbari. On the representation of the plaintiff, Naxalbari was taken as the last place of residence of these defendants by the Court when the order for substituted service was made. It was represented to the Court (it is now conceded that that was a misrepresentation) that the defendants had been residing at that place for sometime past at Naxalbari, and it was on such representation that the Court was induced to hold that the substituted service was properly effected. The learned Judge was therefore perfectly justified in holding that the service effected in this case upon the defendants was not due service.
8. It was next contended by the learned counsel for the petitioner that the application was barred by limitation, inasmuch as these defendants were aware of this decree long before 30 days from the date of the filing of the application under Order 9, Rule 13, Civil P. C. The learned counsel placed before us certain statements of these two ladies and wanted to show that on their own evidence it could, not be held that they did not know of the proceedings earlier than 30th November 1932. The learned Judge has, however considered these statements of the ladies and after taking into consideration the entire evidence in the case and the circumstances and probabilities has come to the definite conclusion that these two ladies first came to know of the decree on or about 30th November 1932. On the evidence in the case and also in view of the fact that these ladies are illiterate pardanashin ladies, the learned Judge came to the conclusion that they came to know of the decree from Basiruddin on or about 30th November 1932.
9. We are therefore of opinion that there had been no failure of justice in this case. We therefore discharge the rule with costs-hearing fee is assessed at three gold mohurs.