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Tripura Modern Bank Ltd. Vs. Bansen and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberOriginal Suit No. 3607 of 1950
Judge
Reported inAIR1952Cal781
ActsCode of Civil Procedure (CPC) , 1908 - Section 99 - Order 3, Rule 6 - Order 5, Rule 9, 13, 15, 16, 17, 19 and 20 - Order 30, Rule 3; ;Calcutta Civil Procedur Code (Amendment) Act
AppellantTripura Modern Bank Ltd.
RespondentBansen and Co.
Cases ReferredIndian Union Asiatic Steam Navigation Co. Ltd. v. Tribhuwandas
Excerpt:
- ordersinha, j.1. this is an undefended suit. at the moment it is failing for want of proper service of the writ of summons. that, of course, does not mean that i am dismissing it, but i am granting further opportunity to the plaintiff to effect a proper service. unfortunately, this kind of service has become so frequent of late that in a future case the court may not deal with the matter so kindly. it is for that purpose that i propose in this case to discuss the law relating to the service of writs and to point out the defects which are being so constantly met with.2. this suit is for a decree for bs. 3,563-13-1, upon an overdraft loan account which defendant l had with the plaintiff bank. defendant l is a partnership firm and defendants 2 and 3 are the partners thereof. defendant 4 has.....
Judgment:
ORDER

Sinha, J.

1. This is an undefended suit. At the moment it is failing for want of proper service of the writ of summons. That, of course, does not mean that I am dismissing it, but I am granting further opportunity to the plaintiff to effect a proper service. Unfortunately, this kind of service has become so frequent of late that in a future case the Court may not deal with the matter so kindly. It is for that purpose that I propose in this case to discuss the law relating to the service of writs and to point out the defects which are being so constantly met with.

2. This suit is for a decree for Bs. 3,563-13-1, upon an overdraft loan account which defendant l had with the plaintiff Bank. Defendant l is a partnership firm and defendants 2 and 3 are the partners thereof. Defendant 4 has been sued as a guarantor. So far as defendant 4 is concerned, he was served personally and acknowledged service of the writ of summons, and no question arises about the service upon him. The service upon the other three defendants is utterly inadequate. I shall now proceed to describe the service effected upon them.

3. The writ of summons in respect of all these three defendants were transmitted to the Sealdah Court, and it appears from the return of that Court that they were served by a process-server of the name of Jadunath Dey. It has already been pointed out that defendant 1 is a partnership firm and defendants 2 and 3 have been, impleaded as parties in their capacity as partners of defendant 1. It will further be observed that the address of defendant 1 is given as 12, Cornwallis Street and it is stated that defendants 2 and 3 carry on business under the firm name and style of Bansen and Co. at the same address. Their residential addresses have not been given in the cause title. Service of the writ was effected on defendants l and 2 in the following manner.

4. On 22nd January 1951, the process-server went to premises No. 32A, Khelat Babu Lane, which, I am told, is the residential address of defendant 2, but which is nowhere mentioned in the cause title, and the process-server says in his return:

'As on search I could not find Sri Eanailal Banerjee, defendant 2 who is an authorised employee on behalf of Bansen and Co. defendant 1, present, I postponed the act of service today.'

On the next day, that is, 23rd January 1951, he again went to premises No. 32A, Khelat Babu Lane and proceeds to say as follows :

'At about 1 p. m., on my enquiry, I went to premises 32A, Khelat Babu Lane; on search I would not find Sri Kanailal Banerjee, defendant 2, who is an authorised employee on behalf of Bansen and Co., defendant 1, present; a lady from that house said that he was not at home then and had gone out, as I could not find anybody or an authorised employee living in the same mess on his behalf, I postponed the act of service today.'

He again returned to the scene of action on 25th January 1951 and this is what happened :

'At about 10 a m. on my own enquiry I went to premises 32 A, Khelat Babu Lane, on search I could not find Sri Kanailal Banerjee, defendant 2, who is an authorised employee on behalf of Bansen and Co., defendant 1, present, and as I could not find any authorised employee living in the same mess on his behalf, I effected service by affixing copy of notice, copy of summons, copy of the plaint) and the Bengali translation directed to them, to the outer door of his house.'

5. Defendant 3 was served in the following manner. The process-server, on 22nd January 1951, at about 10 a. m., went to premises No. 4/2A Rajendralal Street, which, I am told, is the residential address of defendant 3, but which address again is not given in the plaint. On that date he could not find the defendant on search and postponed service. He again went to the same address on the 23rd and, not having found him upon search, postponed service. No particulars of any such search have been given in the return. Then, on 25th January 1931, this is how service was effected :

'On the said 25-1-51, at about 2 p. m. on my own enquiry I went to premises No. 4/2A, Rajendralal Street, as on search I could not find Sri Srikumar Sen, defendant 3, present and as I could not find any authorised person living in the same mess on his behalf. I effected service by affixing a copy of summons, copy (of the plaint) and Bengali translation directed to defendant 3, to the outer door of his house.'

6. On the strength of this service, the plaintiff now asks for a decree. It is quite clear that service on all the three defendants have been made in utter disregard of the procedure imposed by the Code of Civil Procedure (as amended by our Rules). It is equally clear that the process-server had no knowledge of the elementary principles governing the service of writs in either individuals or partnership firms. The process-server went on three occasions not to the address given in the plaint, but to the residential address of the partners, one of whom is described as an 'authorised employee' and not having found them, effected service by affixation. As I considered this service to be utterly inadequate, the plaintiff asked for an opportunity to call the process-server to depose about the manner of service and I readily acceded to the request as I was curious to find out the depth of ignorance of the process-servers in mofussil Courts regarding service of writs.

I might mention that I have, apart from this case, examined severaj other process-servers in several other undefended suits and the results have been amazing. Without exception, these process-servers have displayed an utter ignorance of. the law and the rules regarding service of writs. They have all said that they received their instructions from the Nazir and/or senior process-servers. Most of them have received such instructions many years ago and nobody has since informed them of any alterations in the laws or the rules affecting the service of process. The limit of their knowledge is that they should visit the addresses of persons to be served, upon three successive occasions and then serve by affixation, a practice which, as I shall presently show, has been condemned by a distinguished Chief Justice of this Court more than half a century ago.

This particular process-server condescended to say that he had heard of a law called the Civil Procedure Code but had never read it. About 25 years ago, a Nazir of the Sealdah Court explained to him the mode of service and since then he has received no further instructions except what he could gather from discussions with senior process-servers. Nobody had informed him that this High Court had made any rules affecting the mode of service either in the year 1928 or on any other date (that being the year in which the provisions of Order, Section Rules 15 and 17 were altered by local rules). According to this process-server, who had been serving processes for 26 or 27 years, all he had to do was to go to the address of the defendant on three successive occasions and wait there for a period between half an hour and one hour on each occasion, and then, if the defendant could not be found, to affix the writ of summons. I asked him whether, in view of the fact that the defendants were businessmen, it was reasonable to go to their residences at the time he did, and he replied that there was no fixed time for effecting the service of process. His actual words were as follows :

'Sometimes we go at 7 O'clock in the morning, some-times at 8 O'clock and sometimes at 9 O'clock in the morning. We usually do so in the morning but on some occasions we go there as late as 1 O'clock in the afternoon'

When I asked him as to whether he should have gone to a businessman's residence at l p. m. upon a week day, he said that some people were available at that hour and some were not, but he found nothing wrong in going to a businessman's place of residence at l p. m. It further appeared that he got the residential addresses of the defendants not from the cause title or the writ, but from some letter of the attorneys.

7. In another suit Ganga Prosad Guptu v. Broadway Corporation Ltd. one Narendra Nath Mukherjee, a process-server of the Alipore Court gave evidence before me He also said that the rules of service were imparted to him by the Nazir of the Alipore Court about 16 years ago and since then he has not been informed of any change in the rules or the law regarding the mode of service. According to him also, he was expected to go to the defendant's place on three occasions, and if he could not find him for the third time, it was his duty to serve the summons by affixation. This witness did riot find it unreasonable to go and serve a company at 9 O'clook in the morning.

8. In a third case, Kishorilal Chowdhury v. Ramlal Moonra I had occasion to examine the process-server attached to the Sealdah Munsif's Court. According to him, this High Court had published a book in Bengali 15 or 19 years ago laying down rules for the service of process. That book was lying with the Nazir and was made available to the process-servers 15 or 16 years ago, since when they have not been told of any other rules. This man had been serving summons for the last 85 years. According to him, all he had to be satisfied was that the person to be served resided at the address given and, if after three unsuccessful attempts he was found absent, the writ had to be served by affixation. According to him, if on the third occasion nobody could tell him where the defendant was, service must be made by affixation. I asked him as to whether anybody had informed him that under the rules made by this High Court he had to be satisfied that the defendant was not likely to be found at his address within a reasonable time. To that his answer was as follows:

'We have received definite instructions from our Nazir that if on enquiry on two occasions the person to whom service is to be effected is not found, and if on the third occasion ho is absent, then we must effect service by affixation.'

He further said that this was the instruction that he received about 2 or 3 years ago from the Nazir.

9. In the case of, service through mofussil Courts, in which expression I include the Sealdah, Alipore and Howrah Courts, it is the process-servers attached to these Courts that effect the service and it is clear that if this be the manner in which services of processes in these Courts are carried out, then in most cases the service is likely to be defective. Not only must the Courts ensure that there process-servers have a complete knowledge of the laws and rules affecting the mode of service of writs, but these officers must from time to time be posted with up-to-date information regarding the alterations of those laws and rules so that there may not be a repetition of such defective services, causing enormous waste of money and also involving a waste of time of the public and the Court.

10. About services by affixation Petheram, C. J. said about half a century ago in the case of Cohen v. Nursingdass, 19 Cal. 201 as follows:

'Section 80 of the Code is intended for cases in which the Writ should be affixed in the way required by the section after a proper attempt has been made to find the defendant. It is true that you may go to a man's' house and not find him, but that is not attempting to find him. You should go to his house, make enquiries and if necessary follow him. You should make enquiries to find out when he is likely to be at home and go to his house, when he can be found, before Service like this can be effected, it must be shown that proper efforts have been made to find out when and where head likely' to be at. home and go to the house at a time 'when he can be found, not as seems to be done in this country to go to his house in a perfunctory way, and because he has not been found there to affix a copy of the summons on the outer door of his house. I think this affidavit is insufficient and it is as well that people should know that such service is not good service and that suits should not be tried as undefended suits on service as has been relied on in this case.'

11. It will be observed that the learned Chief Justice was dealing with Section 80 of the Code of 1877, corresponding to Order 5 of the present Code Rule 17 of which introduced the words 'after using all due and reasonable diligence'. What constitutes 'due and reasonable diligence' has been a matter of some controversy. It must of course depend on the facts and circumstances of each case but it has been firmly established that the mere temporary absence of a defendant from his residence or place of business does not justify service by affixation. It has almost become an unwritten law in this country that there should be 8 attempts to serve and. at the end thereof to hand (affix?) the writ on the front door. How erroneous this principle is has already been seen in the words of Petheram, C. J. quoted above, a view which has since been consistently followed.

In Kassim Ebrahim v. Johurmull Khemka, 43 Cal. 447, the bailiff went on three separate days to the place where he was informed that the defendant carried on business in partnership and on each occasions he was told that the defendant was not there. On the third occasion he 'pasted the writ upon the premises after crying aloud the name of the defendant 3 times'. It was held that this was not good service, even though it transpired at the hearing that the defendant knew fully well that writ of summons had been issued upon him. Sanderson, C. J. observed that in such a case it was essential that the requirements of the rules of the Court should be strictly observed and that service of the summons on the defendant should only be made after proper enquiries and there should be a real and substantial effort to serve the defendant personally or to find out when and where he was likely to be found. The effort should be real and not perfunctory.

Mukherjee J. observed that Order 5 Rule 12 recognised the fundamental proposition that, wherever practicable, service should be made on the defendant in person, unless he had an agent empowered to accept service, in which case service upon such an agent would be sufficient. In Baldeo Das v. Subkaran Das, 52 Cal. 179, Page J. observed that it was of the utmost importance in every case, for which provision for personal service had. been made in the Code of Civil Procedure, that all available steps should be taken to effect personal servile. The learned Judge proceeded to say as follows :

'In my opinion, the effect of the authorities is that all available steps to effect personal service must be made before resort is had to the provisions of Order 5 K. 17. It is not enough to attend at the ordinary place of residence or business', or the place where the defeudant personally works for gain, and to conclude that substituted service may be effected merely because at the time when the Serving Peon attempts to serve at such place, the defendant doe3 not happen to be there. In my opinion, it makes no difference whether the Peon attempts at such place once or three times. It is necessary, in my opinion, that the Serving Peon having discovered or believed that the defendant cannot be served at the time when he is attending, should institute proper enquiries to endeavour to ascertain the whereabouts of the defendant.

In my opinion, the Serving Peon before he could take advantage of the provisions of Order 5, Rule 17 must attend at the right place and he must attend at a time when he may reasonably expect that the defendant may be present and if he fails to find the defendant he must take reasonable steps to discover where the defendant may happen to be. In my opinion, the observations of Comer Petheram, C. J. made in 1892 are at least as opportune today as they were 32 years ago. ,In my experience in these Courts I have come to the conclusion that the service of notices is often effected in a most perfunctory manner. But the result of not conforming strictly to the rules laid down in the Code of Civil Procedure is that great hardship and injustice may be done.'

12. It is owing to the repeated pronouncements by the learned judges of this Court that the service of process was not being effected properly that rules were frained by the High Court amending certain provisions of Order 5. Rules 15 and 17 of Order 5 were amended by Notification No. 10428-G. dated 25-7-1928. I set out below the provisions of Order 5 Rule 17 showing the rule as it occurs in the Code and as amended by our rules.

'17. Where the defendant or his agent or such other Procedure when persons as aforesaid refuses to the defendant resign the acknowledgment, or where fuses to accept ser- the serving of ficer after using vice, of cannot be all due and reasonable diligence found. cannot find the defendant (or where the defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time) and there is no agent empowered to accept service of the summons on his behalf, nor any other person to whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant originally resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed a copy, the circumstances under which he did so and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.'

The words underlined (here in italics) have been deleted by the Calcutta Notification referred to above, and the words within brackets have been substituted. It is not generally appreciated that these alterations in Rules 15 and 17 have been effected with a purpose and the requirements of the amended rules must be fully complied with, before service by affixation can be permitted. Simply going to a person's residence or place of business on three occasions and then serving by affixation was, of course, never permissible, but even if it amounted to a technical compliance with the old rule, it must be rejected at sight, under the amended rules. Under the amended rule, absence of the defendant must be absence from his residence. But mere absence will not do. Not only must he be absent at the time when service is sought to be effected, but there, must be no likelihood of his being found thereat within a reasonable time.

All the three process-servers to whose evidence I have referred to above have said that if on the third occasion when they called upon the defendant, they could find no one to enlighten them as to the whereabouts of the defendant, they would be justified in serving by affixation. Under the amended rules this is clearly wrong. In the absence of information regarding the defendant's whereabouts there can be no inference that there was no likelihood of his being found thereat within a reasonable time. At least one of the process-servers went to the extent of saying that he would be prepared to wait for half an hour or an hour on the third occasion, and, in his opinion, his duty ended there. Just as the words 'due and reasonable diligence' gave rise to much controversy, the words 'within a reasonable time' have given rise to some doubt and difficulty.

Just as 'diligence' depended upon the facts of each case, the question as to what was a 'reasonable time' must be decided against the background of a particular case, and no hard and fast rule can be laid down. If the person is absent from his residence, then all possible enquiries are to be made to find out as to when he was likely to return, or else when he was likely to be found at his residence. The result of such enquiry must be tested against all the known facts about the defendant-his habits, his station in life, his occupation and so forth. I do not for a moment deny that service under such stringent circumstances is not at all easy; nor is it meant to be. One could think of many intriguing circumstances that might arise in connection with such a service. Suppose a process-server went to serve a writ at 2 P. M. in the afternoon and was told that the defendant had gone to a cinema show. Would it be sufficient if he was served by affixation after waiting for a period normally taken by an afternoon show? It may be that the defendant, after the show was over went to his club or to the house of a friend; there is nothing unreasonable in his doing so.

Suppose again that the process-server goes to the defendant's house in the morning and he is told that the defendant had gone out for a picnic in the suburbs. It might well be that the defendant might return within a few hours or he may be absent the whole day. There is nothing unreasonable in spending the day at a picnic. I have heard complaints that enquiries from the neighbours seldom produce a satisfactory result. In this country, as probably in all other countries, a process-server is not looked upon with a kindly eye by members of the public and it is seldom that any cooperation is forthcoming. This however is no reason to relax the stringency of the rules. Unless accurate information is received about the whereabouts of the defendant and unless his habits are known how is it possible for anyone to infer that he will not be found at his place of residence within a reasonable time? Merely waiting for an hour or so or even a few hours might not be enough as I have shown in the illustration given above.

13. Next, take the case where the process-server goes to the house of the defendant and finds it all shut up, and enquiries reveal that the defendant had left town. Under such circumstances what would be the reasonable time when he is expected - to be found thereat It must depend on the object for which the defendant had gone out, without knowing which, it would not be possible to fix the reasonable time was he would next be found at his residence. It is constantly argued that the process-server cannot possibly discover all these facts, and to require him to do so, would render the service of processes an impossibility. I am quite aware that there do exist inveterate process-dodgers who are bent upon being obstructive. That however is no justification for relaxing the requirements of the law. If determined efforts are made, I think that service can be satisfactorily effected in the majority of cases. In a really difficult case, the Code of Civil Procedure has provided an adequate remedy in Rule 20 of Order 5.

Under that rule, where the Court was satisfied that there was reasonable ground to believe that the defendant was keeping out of the way, or if for any other reason the summons could not be served in the ordinary manner, the Court could order summonses to be served by affixation at some conspicuous place of the Court House and at the house in which the defendant was known to have last resided or carried on business, or worked for gain. And these are not the only ways in which the Court might direct service to be effected. It could order service 'in such other manner as the Court thinks fit' (also note the words 'unless the Court otherwise directs' in Order 5, Rule 9). Some methods commonly employed are service by registered post or by advertisements in the newspapers.

No doubt, if the facts are correctly placed before the Court, a satisfactory manner of service would be evoled in each case, suitable for meeting the problem that arises. In the case of a service by affixation, it is not sufficient to state in the affidavit of service that the process-server was satisfied upon enquiry that the defendant could not be found at his residence within a reasonable time. Pacts must be stated, in the affidavit to show [what enquiries were made and whether it was reasonable under the circumstances to assume that the defendant could not be found at his residence within a reasonable time. The Court must be satisfied that the process-server was justified in coming to such a conclusion, and in the absence of particulars it cannot do so.

14. Before I proceed to examine the manner in which the service has been effected in this particular case, I should like to recapitulate briefly the relevant rules about the service of summons upon a defendant. They may be conveniently summarised as follows:

15. (I) The first and the most important principle to be observed is that the law requires that wherever practicable, service should be made on the defendant in person. (Order 5, Rule 12. Cohen v. Nursingdas Auddy, 19 Cal. 201; Baldeodas v. Subkaran Das, 52 Cal. 179; Ch. 8, Rule 28, High Court Rules O. S.)

16. (II) A writ addressed to the defendant can be served on the following persons on his behalf:

(i) Agent empowered to accept service.

(ii) Recognised agent.

(iii) Where the suit relates to any business or work against a defendant not residing within the jurisdiction of the Court issuing the Summons, a manager or agent who at the time of service personally carries on business or works for the defendant within such limits.

(iv) Agent in charge of immovable properties.

(v) On an adult male member of the family of the defendant, residing with him.

(vi) The pleader of the defendant.

17. In each of these cases, there are specific rules which govern the mode of service. In other words, service upon a person other than the party on record is not to be allowed as a matter of course, but subject to the rules prescribed by the Code of Civil Procedure, as amended by the rules framed by this Court.

18. (III) The following are the rules which govern service on the persons abovenamed, for and on behalf of the defendant: Agent empowered to accept service:

19. (i) Rule 6 of Order3 lays down that any person residing within the jurisdiction of the Court, may be appointed an agent to accept service of process. Such appointment may be special or general and shall be made by instructions in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof, shall be filed in Court: see Papamma Rao v. Revenue Divisional Officer, Guntur, A. I. R. 1918 Mad. 589. This is a rule which is constantly infringed. All that is stated in the affidavit of service is that the writ was served on the 'authorised agent'. This is not sufficient, as it must be shown how the agent satisfies the definition referred to above.. Sometimes it is said that the agent had 'admitted that he was so empowered'. That again is not sufficient, because the Court must be satisfied that the agent had authority and cannot go merely by his alleged admission. Service upon a 'Gomostha' or a servant by itself is not sufficient. Where service is effected upon a Gomostha, it cannot be assumed that he was either an authorised agent or that he was an agent as described in Rule 13 (N.R. Setti v. N. Venkataratnam, 21 Ind. Cas. 922 (Mad). Service on a 'chela' is not sufficient Sheocharan Das v. Baijnath, A. I. R. 1920 Oudh 220. Service upon a 'Manager' is not enough, unless he is specially authorised, Papamma Rao v. Revenue Divisional Officer, Gunter ibid).

20. I must point out, however, that in Order 5 Rule 9 the words used are 'agent resident within that jurisdiction who is empowered to accept the service of summons'. In Rule 16 the words used are 'to an agent or other person on his behalf.' In Rule 17 words used are 'or his agent or such other person as aforesaid.' A strict view has not always been taken of the definition of an agent as used in these rules. In many cases, it is deemed to be sufficient if the person sought to be served admitted that he had power to accept service or if the person was a near relation of the person to be served. This, however, in my opinion, is too wide an interpretation of the word 'agent.' An agent empowered to accept service of summons in Order 5 should be no different to the kind of agent contemplated by Order 3 Rule 6. Reading Order 3 Rule 6 together with Order 5, Rule 9, I do not see how the empowering of an agent under Order 5 Rule 9 could be in any other manner than indicated in Order 3 Rule 6.

In my opinion, verbal authority is not enough. [It is true that in Rules 16 and 17 the words are 'agent empowered to accept service of the summons is not there,' but coming as they do after Rule 9, I do not think it was intended that these rules refer to different kind of agency than what is referred to in Rule 9 or that service upon any kind of agent would be good service. But even if a liberal interpretation is put upon the word 'agent' in these rules, it would not be sufficient to say that a particular person was the agent of the defendant and had authority to accept service, without adducing evidence to show how such a person came to be the agent of the defendant and how such authority was conferred upon him.

(ii) Recognised Agent :

21. These words have been defined in Rule 2 of Order 3. Persons holding Powers-of-Attorney authorising them to act on behalf of the party, and in the case of persons not residing within the local limits and yet carrying on trade or business through an agent, are considered as the recognised agents for the purposes of service of process. Under G. 3 Rule 3, any process served upon a recognised agent is as effectual as if it was served on the party in person.

(iii) Manager or Agent in charge of business or work :

22. Where a suit relates to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons was issued, service on a manager or agent who at the time of service personally carries on such business or works within such limit, would be deemed as good service (O. 5 Rule 13). It may be observed that the first limitation is as regards the nature of the suit. The rule will not apply to all kinds of suits but only relating to business or work. The; manager or agent must be a person who is carrying on the business 'or work for and on behalf of I the absent owner. A mere servant employed to carry out orders is not such an agent, Goculdas v. Ganeshlal, 4 Bom. 416, Reliance Marine Insu. Co. Ltd. v. Mohomed Omar Mahomed Tacoob, 43 Cal. L. J. 576.

(iv) Agent in charge of immovable property :

23. In this case, the suit must be to obtain relief respecting immovable property or for compensation for wrong to immovable property (o. 3 Rule 14)- in such a case, if the service cannot be made on the defendant in person, and there was no agent empowered to accept service, it can be made on any agent in charge of the property.

(v) Adult male member of the family of the defendant residing with him :

24. Service on this category of persons is regulated by B. 15 of Order 5. Service in these Courts very frequently purports to be on such persons and is in most cases defective. It is often forgotten or overlooked that this' rule has been amended by the High Court in 1928 by the Notifications mentioned above. In fact, the amendment has been such that the rule as it originally stood in the Code of Civil Procedure may be said, to have been wholly abrogated and gives no indication as to the correct mode of service. A service of this description can only be made under the following circumstances :

(a) The defendant must be absent from his residence. Services are often found which state that the defendant was inside the house and avoiding service. Under such circumstances Rule 15 cannot be applied. The absence must be from the residence of the defendant and not his place of business.

(b) A mere absence of the defendant from his residence is not enough but the process server must be satisfied that there was no likelihood of his being found thereat within a reasonable time. As to what is 'reasonable time' has already been discussed above.

(c) It is only if the circumstances set out in (a) and (b) are satisfied that service can be made on an adult male member belonging to the family of the defendant, and residing with him. The first requisite is that the person upon whom service is made must be male member belonging to the family of the defendant, and secondly he must reside with the defendant. Service on the defendant's son, by itself is not sufficient; because he may or may not reside with the defendant (Gul Mohammad v. Mul Chand, A. I. R. 1933 Lah. 797.) A person above the age of 16 years has been held to be an 'adult.' Hari Charan Singh v. Chandra Kumar Dey, 35 Cal. 286. Service on a female member is not sufficient; service on a servant is not valid. (See explanation to E. 15).

25. A Munim is not a member of the defendant's family {Firm Ramgopal Kanhialal v. Narain Das, A. I. R. 1918 Lah. 295). It does not follow however that service can be made on an adult male member of the- defendant's family without attempting to find out the defendant (Dharamchand v. Kanak, 26 Cal. W. N. 359).

(vi) Pleader of the defendant :

26. Under Rule 5 of Order 3, service on pleader of the defendant is good service. So far as solicitors of this Court on its Original Side are concerned, service of Writs can be made upon them if they agree to accept service or if they have entered appearance on behalf of a defendant and filed their warrant. (Chapter 8 B. 25, High Court Rules O. S. Re Denver United Breweries, (1890) 63 L. T. 96).

27. (iv) Service by affixation. The most difficult problem arising in the matter of service of process is service by affixation. This mode of service is regulated by B. 17 of Order 5. As has been pointed out before, this Rule has been substantially amended by this High Court and the amended Rule must be strictly followed. Service by affixation can only be made under the following circumstances :

(a) Where the defendant is personally found but refuses to sign the acknowledgment.

(b) Where the defendant cannot be found personally but where persons who can be served on his behalf (see above) are found, but they refuse to sign the acknowledgment.

(c) In the case, however, of an adult male member of the defendant's family residing with him, no attempt to serve upon him can be made at all, unless the defendant was not likely to be found at his residence within a reasonable time. Before the expiry of that time, the refusal of an adult male member residing with the family of the defendant is not a sufficient ground for affixing the Writ.

(d) Where the defendant was absent from his residence and there was no likelihood of his being found thereat within a reasonable time, and there was no other person as described above upon whom the service could be effeeted in accordance with the law.

28. It is only when these conditions are satisfied that there can be service by affixation. Generally speaking the affidavits of service in respect of this kind of service monotonously repeat that the process server went on three occasions to the residence of the defendants and not having found him there or any 'authorised' agent,' the writ was served on the third occasion by affixing it on the outer door. This is not good service for reasons mentioned above.

29. It may be observed that service by this mode is permissible when the absence of the defendant is from his residence. Often, service is sought to be made at the business place and is affixed there if the defendant cannot be found; this is bad service. The case of Purdanashin Hindu ladies presents some difficulty. It has been held (Khiroda Sundari v. Nabin Chandra, 19 Cal. W. N. 1231) that where the defendants were Purdanashin Hindu ladies to whom the Peons could not possibly get access, the provisions of Order 5B. 17 were satisfied, as it might be said that the serving officer could not 'after using all due and reasonable diligence' find the defendant. But these words have been deleted from the Rule by our amendment, which lays down that the defendant must be absent from his residence. It is therefore extremely doubtful whether service by affixation upon a Hindu Purdanashin lady, if she happens to be inside the house, would be good service under this rule.

30. (v). Service must be made at a time when the defendant is likely to be at the place where service is sought to be effected. In many cases, the return fails to state the time when the attempt to serve was made. This is fatal. Since Writs can be served on a defendant at his place of residence or at his place of business, it follows that it must be attempted to be served at a time when the defendant was likely to be at his place of residence and/or his place of business. The process-servers who were examined before me said that they went out in the morning and did not find anything unreasonable in trying to serve a limited company at 9 O'clock in the morning.

Nor in this particular case did the process-server find it unreasonable to attempt to serve defendant 2 at 1 p. m. at his residence, when of course he was expected to be at his place of business. In Jhabarmull Dudhwalla v. Bhagat Ram Serowgi, 51 cal. W. N. 189, it has been held that to go to a businessman's residence during business hours when ordinarily he is away at his business premises elsewhere, for the purpose of serving Summons upon him and not finding him at his residence on call, and affixing the process on the outer door of his residence, was not good service.

31. (vi). Lastly, we come to the question of serving a firm or a Corporation.

32. As regards a partnership firm, the procedure for service is laid down in Order 30 Rule 3, Civil P. C. It lays down that where persons are sued as partners in the name of their firm, the summons shall be served either :

(a) upon any one or more of the partners, or

(b) at the principal place at which the partnership business is carried on within British India upon any person having at the time of service, the control or management of the partnership business there, as the Court may direct, provided that, in the case of partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within British India whom it is sought to make liable.

33. A partner cannot be properly described as an 'authorised employee' for the purposes of serving process, as we find him described in the present case.

34. It will thus be seen that there are two alternative modes prescribed, namely, upon a partner or upon a manager in control of the business. If the service is effected upon a manager in control of the business, the service must be at the principal place at which the partnership business is carried on'. In this particular case, if the partner was sought to be served not as a partner but as a manager, then he could not be served at the residence of the partner. Sometimes service is made by registered post upon a firm in the firm name but this does not comply with the rule. Harjibandas Gordhandas v. Bhag-wandas Pursram, 49 Cal. 394.

35. Where the bailiff is directed to serve the summons at the place of the business of the firm upon the manager or the managing partner he cannot do so at their residence (Manjimal Phaghunmal v. Khubchand Pahlumal, A. I. R. 1926 Sind 208). The most important thing, however, to observe is that although an alternative mode is prescribed, namely, to serve on a partner or on a person in management, this cannot be done without the direction of the Court, International Continental Caoutchone Compagnie v. Mehta & Co., '54 cal. 1057. The above mentioned case has decided that failure to obtain such directions will not vitiate the service but would constitute an 'irregularity' within the meaning of Section 99. But a deliberate omission cannot be overlooked. Further notice must be given under Order 30 B. 5 as to whether a person is served as a partner or as a person in management and control of the business or in both capacities.

36. Service on a Corporation is governed by Order 29, E. 2, Civil P. C. It prescribes that subject to any statutory provision the summons in the case of a Corporation (it includes a limited company) may be served :

(a) on the Secretary, or on any director, or other principal officer of the Corporation, or

(b) by leaving it or sending it by post addressed to the Corporation at the registered office, or if there was no registered office, then at the place where the Corporation carries on business. In the case of foreign companies, the place where the Corporation carried on business meant the principal place of business in the Indian Union Asiatic Steam Navigation Co. Ltd. v. Tribhuwandas & Co., A. I. R. 1928 sind 111.

37. Applying these rules to the facts and circumstances of this case, it is quite clear that the service is not in accordance with law.

38. As regards defendant 2, he was served by affixation, on the third attempt as he could not be found and as the process server could not find any 'authorised employee living in the same mess on his behalf.' This shows complete ignorance of the process server as to how the Writ should have been served.

39. As regards defendant 1, the ignorance of the process server is still more profound. To attempt to serve a partner calling him an 'authorised employee' and at his residence, is by itself wrong, but even so, that service was by affixation and under circumstances under which no service by affixation could be effected.

40. As regards defendant 3, he has served on the third attempt because he could not be found and there was no 'authorised person living in the same mess.' This also shows the profound ignorance of the process server regarding the elementary principles governing service by affixation.

41. I, therefore, hold that there was no proper service in this case and I direct that the suit should go out of the undefended list and that a fresh Writ of Summons should issue for service upon the defendants (other than defendant 4) and that service be effected in accordance with law. Let the Writ issue upon counsel's endorsement, countersigned by my officer.

42. The question of costs of the day is reserved.


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