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Sitaram Swami Vs. Kalandi Patra - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.127
AppellantSitaram Swami
RespondentKalandi Patra
Cases ReferredSankaralinga v. Ratna Sabhapati
Excerpt:
civil procedure code (act v of 1908), order v, rule 17 - service of summons--substituted service--ordinary residence--leaving temporarily--due and reasonable diligence to find defendant. - .....observed that as it appeared from the serving officer's report that according to the information given to him there was no prospect of his being able to serve the defendant personally within a reasonable time, he was justified in affixing the summons to the door of the house. in so far, therefore, as the petitioner, who has been examined as a witness in the case, is concerned service was properly effected. in so far as the other petitioner is concerned, he has not bean examined and there is nothing on the record to show under what circumstances or for what length of time he was absent. we are unable to say, therefore, that the summons was not duly served, in so far as he is concerned.2. the result is that the order of the court below is affirmed, and this rule discharged with costs one.....
Judgment:

1. We are invited in this Rule to discharge an order by which the Court of appeal below, in concurrence with the Court of first instance, has refused to set aside an ex parte decree in a contribution suit at the instance of the petitioners who were the second and third defendants. The application was made under Rule 13 of Order IX which provides that an ex parte decree may be set aside if the defendant satisfies the Court that the summons was not-duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. The case before us does not fall within the second branch of the rule, because it has been found by the Court below that the petitioners wore aware of the suit and did not appear at the hearing. If the petitioners can succeed it can only be on the ground that the summonses were not duly served upon them. Now, upon this part of the case the admitted facts are that the peon, as stated in his return, could not find the petitioners at their residence at Ichapur and on inquiring from their wives learnt that one of them had gone to Vizagapatam and the other to Berhampore, two places in the Madras Presidency, and outside the jurisdiction of the Court. He thereupon attached copies of the summons to the outer door of their residence. As regards one of the petitioners it is stated that he had gone to Vizagapatam in August 1909 and did not return to his usual place of residence till December 1909. Summons was served on the 30th September 1909. Upon these facts, the question arises whether substituted service was properly effected under Rule 17 of Order V of the Code. That rule provides that,--we quote only so much of the rule as is applicable to the facts of this case,--where the defendant or his agent refuses to sign the acknowledgment or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on 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 ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued. Two questions arise upon this Rule, namely, first, whether the summonses were affixed on the outer door of the house in which the defendant ordinarily resided; and, secondly, whether, before this was done, the serving officer had used all due and reasonable diligence to find out the defendants. In so far as the first question is concerned, there is no room for dispute that the defendants ordinarily resided in the house on the outer door of which the summonses were affixed. They had left their place of residence only temporarily and, therefore, it cannot be contended that that was not the house in which they ordinarily resided at the time when the service was effected. In so far as the second question is concerned, we have to examine whether the serving officer had used all due and reasonable diligence to find the defendants. His report states that he could not find the petitioners at their place of residence, and upon inquiry from their wives he learnt that one of them had gone to Berhampore and the other to Vizagapatam. One of the petitioners did not return to his residence till about three months after the date of service. Under these circumstances, we are of opinion that, in so far as this defendant is concerned, the peon had used all due and reasonable diligence within the meaning of the rule. We take it, therefore, that the service was properly effected. The learned Vakil for the petitioner has, however, contended that this view is opposed to the decision in the case of Sakina v. Gauri 24 A. 302 which has been accepted as good law in the case of Sakharam v. Padmakar 30 B. 623 : 8 Bom. L.R. 757. He has also placed reliance upon the case of Subramania Pillai v. Subramania Ayyar 21 M. 419 and Abraham Pillai v. Donald Smith 29 M. 324. These cases, as also the decision in the case of Bhomshetti v. Uma Bai 21 B. 223 lay down the proposition that merely because the peon is unable to find the defendants at their residence, he is not entitled to effect service in the manner prescribed in Rule 17 of Order V of the Code. He must take care to ascertain where the defendants live, and, if practicable try to effect personal service upon them. It is possible that in some of these cases the rule was too broadly stated, and it may be a question whether the decision in every one of these cases can be justified upon the most liberal interpretation of Rule 17. The case before us, however, is reasonably free from difficulty. Here one of the defendants had left his residence temporarily. He was absent for several months. It was consequently impossible for the peon to retain the summons in his custody till the return of the defendant, and as the defendant had left the jurisdiction of the Court, it was not possible for the peon to effect service upon him personally outside the jurisdiction. The present case, in our opinion, falls within the principle recognized in the case of Sankaralinga v. Ratna Sabhapati 21 M. 324. There the learned Judges observed that as it appeared from the serving officer's report that according to the information given to him there was no prospect of his being able to serve the defendant personally within a reasonable time, he was justified in affixing the summons to the door of the house. In so far, therefore, as the petitioner, who has been examined as a witness in the case, is concerned service was properly effected. In so far as the other petitioner is concerned, he has not bean examined and there is nothing on the record to show under what circumstances or for what length of time he was absent. We are unable to say, therefore, that the summons was not duly served, in so far as he is concerned.

2. The result is that the order of the Court below is affirmed, and this Rule discharged with costs one gold mohur.


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