KUPPUSWAMY Vs. VISWAM CHITS

JUDGEMENT

(1.) The revision petitioner is the defendant in a suit which was decreed ex parte. An application filed under O.9 R.13 of the Code of Civil Procedure was dismissed by the Trial Court finding that the summons had been properly served on the defendant and the application is out of time. That order confirmed in appeal is under challenge in this revision.

(2.) The summons issued to the revision petitioner purports to have been served by affixture. The question raised by learned counsel for the revision petitioner is that the service by affixture in this case cannot be accepted as proper service and that the application having been filed within 30 days of the date of knowledge of the decree should have been allowed by the lower court. The endorsement of the process server on the summons is to the effect that on 10-1-1983 when he went to the residence of the defendant he was not present there and he came to know that the defendant had gone to Sabarimala and therefore the summons was affixed in the outer door of the house. This, according to the revision petitioner, is not proper compliance with the requirements under O.5. R.17 of the Code and the court below was wrong in having accepted the affixture as proper service. The service by affixture is One of the modes of service of process envisaged under O.5 of the Code. But such service is to be under the circumstances referred to in R.17 of O.5 and in strict compliance with the requirements thereunder. The Rule provides that service by affixture can be resorted to when after using all due and reasonable diligence the serving officer cannot find the defendant who is absent from his residence at the time when service is sought to the effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time 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. If the defendant was temporarily absent from the residence when the process server goes to that place for the first time the summons cannot be straightaway affixed at the place as an effective mode of service without making any efforts to ascertain when the defendant would be available and attempting to serve the summons on an agent of the defendant or other adult member of the family as envisaged under the rules. The scheme of the provisions in O.5 of the Code is that personal service has to be attempted and only when that service is found to be not possible either because the defendant cannot be found or because he refuses to accept the summons and the defendant has no agent and no adult member in the house is also willing to be served, then only the service by affixture as provided under R.17 can be thought of. In a case where there had been no such attempt on the part of the serving officer the service by affixture is ineffective and cannot be accepted as due service. R 17 as amended by Act 104 of 1976 requires that all due and reasonable diligence has been shown by the serving officer to ascertain the likelihood of the defendant being present at the place of his residence before he proceeds to affix the summons. What would be reasonable time for the purpose of this provision would depend upon the facts and circumstances of each case and has to be determined on the background of the facts attending thereto. If the defendant had been on pilgrimage to Sabarimala it would have been possible for the process server to ascertain when he would be back and attempt to serve the summons personally on the defendant on his return. That step has not been taken by the process server. The endorsement indicates that he bad not enquired as to when the defendant would be available to receive the summons or whether it could be served on any adult member of the family. It is evident that the requirements under the rule have not been resorted to and the circumstances which would justify the affixture of summons did not exist in the case and the service cannot therefore be accepted as proper service.

(3.) It may be useful to refer to the decisions cited by the learned counsel for the revision petitioner in support of his contentions. In G S. Mudaliar v. I. F. Corpn AIR 1977 Mad. 358 , it was a case where service by affixture was resorted to when the defendant could not be found at his residence at the first time the serving officer went there. The court held that where it was found that the judgment debtors were not in their respective residences at the time the process server called, but the process server did not make any attempt to serve the notices on any adult male members of the family in their residences and be straightaway proceeded to affix the notices stating that the judgment debtors were out of town, no case was made out for serving the judgment debtors by affixture and consequently the order of the executing court declaring the judgment debtors ex parte was without jurisdiction. In Ramalingam v. Shiv Balasiddiah, AIR 1979 A. P. 180, referring to O.5 R.17 of the Code the court pointed out that when the process server goes for the first time to the house of the defendant and if he is not found in the house he has to make efforts as to when he would be available next time and must try to serve on him. The court added that it was his duty to have tried to find out the defendant and serve the summons on him and where for serving the summons for hearing of the suit on the defendant the process server went to the house of the defendant for the first time and on finding that be had gone to another town affixed the summons on the outer door of defendant's house without making efforts to find out as to when he would be available next time and trying to serve the summons on him, O.5 R.17 cannot be said to have been complied with and the summons cannot be said to have been duly served within the meaning 'duly served'. The position has been succinctly stated in Tripura Modern Bank v. Bansen & Co., AIR 1952 Cal. 781 . What constitutes 'due and reasonable diligence' has been explained thus: