ABDUL SALAM ROWTHER Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) THE appellant is the second defendant in O. S. No. 184 of 1982 on the file of learned Subordinate Judge of Villupuram. On 7. 10. 1982 the suit was decreed exparte against him. THEreupon he came forward with I. A. No. 469 of 1987 under 0. 9, Rule 13, C. P. C. to set aside the exparte decree against him on the allegation that he was not served with any summons in the suit. He came to knowof thesuit for the first time only on 11,7. 1987 when the notice of the execution was received. His claim was contested by the plaintiff on the ground that there was service of summons by affixture and this plea is set out by the appellant only in order to avoid giving proper explanation for his nonappearance. THE court below has negatived the contention of the appellant and dismissed his application with cost. And this appeal is directed against the said order.

(2.) LEARNED counsel for the appellant submitted that he was not served with summons in the case and he became aware of the decree only when notice in execution proceedings was received by him and that the court below instead of addressing itself to the question whether there was sufficient cause for his non-appearance when the suit was called on 7. 10. 1982 for hearing, has dealt with the merits of the case which is totally irrelevant for the purpose of the application. We are now concerned only with the question whether there was due service of summons on the appellant for the hearing dated 7. 10. 1982. The notes paper in the suit is not available since it is stated to have been destroyed. It does not appear from the available records that there was any personal service of summons on the appellant. The court below also proceeds on the basis that there was only service by affixture. In this connection, learned counsel for the appellant points out that in the plaint the address of the second defendant/appellant is given as No. 17, V. O. C. Street, Villupuram, whereas in the copy of the summons he is stated to be residing at No. 24, V. O. C. Street, Villupuram and the specific endorsement of the bailiff is that he enquired the whereabouts of the appellant on 18. 9. 1982 in the address mentioned in the summons which is 24, V. O. C. Street, Villupuram and learnt that he had gone out and it is not known when he would return. So, he affixed the summons on the outer door of the above mentioned house. This would indicate that the bailiff has not searched for the appellant in the address where he was stated to be residing as per the plaint averments and instead he made enquiries in some other door number and the affixture was also made therein.

(3.) IN Mrs. Emkamma Bai v. Ravikumar, (1992)1 L. W. 54, the duty of the process server under O. 5, Rule 15, C. P. C. has been stated by srinivasan, J in this manner. Under O. 5, Rule 15, C. P. C, it is an essential precondition that the process-server should ascertain whether there was likelihood of the defendants 3 and 4 being found in the residence within a reasonable time. If the defendants 3 and 4 could be found at their residence within a reasonable time, then the process-server should wait or go to the residence of the defendants once again on another day and try to serve on them at their residence personally. IN case where the defendants may not be found at their residence within a reasonable time, the process-server could serve the summons on any adult member of the family, whether male or female, residing with such defendant. As the process-server has not ascertained such fact in the present case and has not made any reference in the affidavit to the factum of his ascertaining as to whether there is any likelihood of the defendants being available for service at their residence within a reasonable time, the service of summons on a person, who has described himself as the 4th defendant' ' s brother and 3rd defendant' ' s son is not a valid service. It cannot be countenanced in law as service within the meaning of O. 5, rule 15, C. P. C. IN Kuttiappa v. Rangasami, (1992)2 M. L. J. 362, also Srinivasan, j. has reiterated the procedure to be followed as under. ' ' Under O. 5. Rule 15, C. P. C. , if the defendant is absent from his residence at the time when the service of summons is sought to be effected on him, the process server must be satisfied, (i) that there is likelihood of the defendant being found at the residence within a reasonable time, and (ii) he had no agent empowered to accept the service of summons on his behalf and in that event, service may be made on any adult member of the family, whether male or female, who is residing with him. O. 5, Rule 17 is to the effect that when 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 who is absent from his residence and there is no likelihood of his being found at the residence within a reasonable time and if there is no agent or other person to receive the summons, 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 and shall then return the original to the court with report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so and, the name and address of the person by whom the house was identified and in whose presence the copy was affixed. ' '