1. In this case the petitioner is the Chairman of the Calcutta Corporation. He sued in the Small Cause Court at Sealdah to recover the sum of Rs. 325, being the cost of certain work done by him upon premises No. 45, Karaya Bazar Road, under the provisions of Section 597 (2) of the Calcutta Municipal Act. The defendants in the suit were the two co-owners who hold, it appears, equal undivided shares in the property in question. One of those did not appear. The second appeared and pleaded that there had been no service upon her of the notice issued under the provisions of Section 299 of the Act. The learned Small Cause Court Judge gave effect to this contention and dismissed the suit as against her and decreed the suit against defendant No. 1, upon whom notice had been admittedly served, to the extent of half the claim. Thereupon at the instance of the Chairman of the Corporation this Rule was issued upon both the defendants calling upon them to show cause why the claim of the plaintiff, should not be decreed in full against both. As in the Court below, the first defendant does not appear. The second defendant appears and contends, first, that it has not been shown that there is a Municipal drain situated at a distance not exceeding 100 feet from the property, secondly, that it has not been shown that to the issue of this notice the Chairman had obtained the approval of the General Committee and lastly, that no attempt had been made to serve the prescribed notice upon her in the manner provided in Section 593.
2. It is not contested that the work has not been done and it is not suggested that the claim made is unreasonable. With regard to the first two contentions, apart from any presumption that might possibly arise from the failure on the part of the owners to prefer any objection under the provisions of Section 598 of the Act, it does not appear that these matters were in fact specifically pleaded in the written statement, and it is clear from the manner in which the case was conducted in the Trial Court that they were not put in issue in that Court. It is too late for the defendant to raise those questions now. With regard to the service of notice we find that as a matter of fact the notice addressed to the owner of the premises has been served upon the co-owner defendant No. 1 by delivery to a male member of her. family. The provisions of the section to which we have just referred make it necessary for the Corporation in any such notice to name the owner, and the section further provides that when there are more owners than one, service may be effected upon any one of them. It would rather appear that the learned Small Cause Court Judge had overlooked the provisions of this section, and service upon one being effectual against the other it is clear that against both the defendants there should be a decree in full.
3. We accordingly make this Rule absolute and allow the plaintiff's claim in full against both the defendants with costs of the first Court against both, and also the costs of this Rule against No. 2. We assess the hearing fee at three gold mohurs.