Lancelot Sanderson, C.J.
1. This appeal is from an order made by Mr. Justice Hasan Imam on the 3rd of March in this year, in which he refused to set aside a decree for specific performance of an agreement between the plaintiff and defendant. The decree was made on the 9th of December 1914, and it was made ex parte, the defendant not being present or taking any part in the proceedings. Then in consequence of a letter which was dated the 22nd of January 1915 and written by the plaintiff's Solicitor to the defendant, an application was made to Mr. Justice Imam to set aside the decree on the ground that the writ of summons had not been served upon the defendant. The learned Judge refused to set aside the decree and this is an appeal from his judgment.
2. Now, the service was supported in the first instance upon an affidavit in the usual form, which is to be found at page 15 of the paper-book, in which one Sitaram, who was employed by the plaintiff, and another Ishak, who was in the employ of the Sheriff of Calcutta, swore that they had been to the dafendant's house where he ordinarily lived and resided on the 1st, 3rd and -4th day of August, that they could not find him there, that they could not see any adult male member of his family, that they had called out his name in the usual way but got no response and that thereupon the writ had been posted upon the premises, and it was upon that affidavit of service that the learned Judge of the Court of first instance proseeded to give his decree.
3. Now, it turns out that the defendant did not reside at the premises, which are mentioned in the affidavit, namely, No. 1, Amra-tola Lane, in Calcutta. What took place was that these two men whose names I have already mentioned, one in the employ of the plaintiff and the other in the employ of the Sheriff of Calcutta, went to the place where the defendant carried on business with his partner, and tried to find him there on the days in question, that the bailiff went into the business premises and saw somebody seated on a chair on each occasion, who told him that the defendant was not at that time at the place, and that then having cried aloud his name three times he posted the writ of summons upon the premises. The question is whether that is sufficient service. I may say at once that in one sense L regret that we have to allow this appeal, because I have not much doubt in my mind, speaking for myself, that the institution of these proceedings did come to the knowledge of the defendant, and I do not think that the defendant has any merits in this application. But that is not the question. If we were to decide that what was done in this case was sufficient service of the writ, it might be taken as a precedent on other occasions. Inasmuch as I do not consider that what was done in this case was sufficient service, it would not be right for us to say that it was sufficient service, because we are strongly of opinion that the defendant knew of the issue of the writ. In my judgment, where it is a question of substituted service, and the defendant has not been served personally, it is most essential that the requirements of the rules should be strictly observed in all respects.
4. Now, the rules which are material to this matter have already been referred to, and I only intend to refer to them quite shortly. The first is Order V, Rule 12, which says, Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.' Now, in this case there is no doubt that service upon the defendant was not made personally, nor was it made upon an agent empowered to accept service. It is quite true that a letter was written by the plaintiff's Attorney to a gentleman who was acting in respect of the dispute about these premises on behalf of the defendant, but that does not empower him to accept service, and unless he has authority from his client to accept service, and does accept service, the mere fact that the plaintiff's Attorney writes to the defendant's Attorney saying 'will you accept service, and he receives no reply, in my opinion, speaking for myself, is not sufficient. Therefore, it does not come within Rule 12.
5. The next rule which is really material is Order V, Rule 17. That has already been read by Mr. Bose, but I will read it again in part for the purpose of making my judgment intelligible. It says, 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....'
6. Now, the question in this case is whether the facts as set out in two or three affidavits which have been referred to by Mr. Bose show that the serving officer used all due and reasonable diligence. In my opinion, it would be dangerous for this Court to hold that the facts set out there show that all due and reasonable diligence was used. One must remember that the first affidavit represented that the serving officer had gone to the defendant's dwelling-house and tried to find him on three separate occasions, that he could not find him or any adult male member of the family and that he then proceeded to call out, outside the house, the name of defendant and then posted a copy of the writ upon the premises of the defendant, This is one thing. But it turns out that a: very different matter occurred. The serving officer went to the defendant's place of business, where he carries on business with his partner. There is no mention in the affidavit that the defendant resides there. In fact the defendant swears that he does not ordinarily reside there; and I am not prepared to hold that merely going to a man's place of business on three separate days, a place of business where he carries on business with other partners, and where he may or may not be on these particular days or at the particular time of the day, and merely asking for him, and then when he does not find him, posting a copy of the writ on the outer door of the premises is sufficient service. I may adopt the very excellent common sense rule laid down by one of my predecessors, Chief Justice Sir Comer Petheram. It is this. He says: 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 the house at a time 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 the defendant is likely to be found not, as seems to be done in this country, to go to his house in a perfunctory way... 'I lay stress upon the words perfunctory way.' [See Cohen v. Nursing Dass Auddy 19 C. 201.] Now, those are the words used by Chief Justice Sir Comer Petheram when he was dealing with a case where service was attempted to be made on a man at his dwelling-house. I think that remark will apply a fortiori to this case where service was effected in a perfunctory manner, by going to a man's place of business where he carries on business with a partner, and where he may be or may not be on those days. As has been said, it is a very good rule to follow that proper enquiries, and real and substantial effort, and not perfunctory, should be made to find out when and where the defendant is likely to be found.
7. Under these circumstances I think that, although as I have said before I have no. sympathy with the defendant, but having regard to the fact that if we allowed this service to pass we might be approving something which would be taken as a precedent which, in my opinion, should not be taken as a precedent, I think that the appeal should be allowed and we will hear Mr. Mitter on the question of costs.
8. (After discussion.) We think that the proper order in this case is that the appeal will be allowed upon the undertaking by Mr. Mitter that no further service of the writ will be necessary. The suit will, of course, be restored. The costs of the application before Mr. Justice Imam to set aside the decree will be costs in the cause, and each party will bear the costs of this appeal. Any costs, if already paid by the appellant, will be refunded.
9. I agree that the appeal should be decreed. As there is no question in this case that the respondent did not go to the house of residence it cannot be said that all due and reasonable diligence was used to find the defendant. The fact that the plaintiff went to the house where summons was posted under the impression that it was the defendant's place of residence which it was not, indicates an intent and knowledge that the defendant was likely to be found at his place of residence, though in fact no search was made there. That the defendant had otherwise knowledge of the institution of the suit is highly probable. But that is not sufficient if the service is not formally proved.
10. I would like to add that the decision referred to by the Chief Justice [Cohen v. Nursing Bass Auddy 19 C. 201] was followed by Sir Lawrence Jenkins, C.J., and myself in an unreported decision in Appeal from Order No. 75 of 1912, dated the 28th November 1913.
11. I am of opinion that the order of Mr. Justice Imam cannot be supported. The question for determination is, whether the appellant, as an applicant who seeks to set aside a decree made ex parte against him, has satisfied the Court, within the meaning of Rule 13, Order IX, of the Code, that the summons in the suit was not duly served upon him. The answer depends upon the true construction of Rules 12 and 17 of Order V, Rule 12 recognizes the fundamental proposition that, wherever practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service upon such agent shall be sufficient. The present case does not fall within the exception, as it is not suggested that the defendant had an agent empowered to accept service. The notice given to Mr. Dutt, who had acted as his Attorney on a previous occasion, was also clearly insufficient, and reliance has not been placed thereon in support of the order under appeal. The question, consequently, arises, whether service was made in fulfilment of the requirements of Rule 17. That rule-I quote only so much of it as is relevant for our present purpose-provides that where the serving officer, after using all due and reasonable diligence, cannot find the defendant, he 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. Here the plaintiff caused the notice to be affixed on the house at 1, Amratola Lane. The plaintiff erroneously assumed that the defendant ordinarily resided there; as a matter of fact, it was not his residence; but in that house, business was carried on by a firm whereof the defendant was a partner. In these circumstances, can we say that the plaintiff used all due and reasonable diligence to find defendant; if he did not, the service in the mode in which it was effected was not in fulfilment of the requirements of the Code. In my opinion, the answer must be in the negative. I am not prepared to affirm the proposition that if the plaintiff makes no effort whatever to find the defendant in the place where he ordinarily resides, and not finding him where he carries on business along with others, affixes the summons upon a conspicuous part of the business premises, the requirements of the Code are satisfied: Cohen v. Nursing Dass Auddy 19 C. 201. Indeed, the plaintiff has not proceeded on the theory that it was permissible under the law to serve summons in this manner. He acted on the footing that the defendant actually resided in the premises to which the summons was taken. He now discovers that he was under a misapprehension, and is consequently driven to maintain a position which is absolutely unsustainable. There is thus no escape from the conclusion that the summons was not duly served. It has finally been argued that there are ample indications that the defendant was aware of the institution of the suit against him. But this is plainly of no real assistance to the respondent; for, if the summons was not duly served, as I hold it was not, the defendant is entitled, under Order IX, Rule 13, to have the ex parte decree set aside as against him. Consequently, this appeal must be allowed and the application to set aside the ex parte decree granted.