ELLAPPA NAICKER Vs. ARUMUGA SERVAI

JUDGEMENT

(1.) THIS revision arises out of proceedings under the Madras Cultivating Tenants protection Act on the refusal of the Revenue Divisional Officer to set aside the order for eviction passed ex prate.

(2.) IN the application for eviction, the father and son were added as respondents. The present revision petition has been preferred by the father who in fact is the tenant. The son had been made a party respondent. The first summonses on the case to the two respondents were taken by post and returned unserved. That was for the hearing on 19-2-1964. The case was adjourned to 5-3-1964. For this hearing summonses in the ordinary form had been issued. According to the return of service, the first respondent, the present petitioner, refused to receive the summons when tendered on 26-2-1964. It is stated in the return that the second respondent was not found. It is admitted that subsequently on the instructions of the clerk of the Revenue Divisional Officer the summonses were affixed on the outer door of the residence of the tenants. The respondents to the application were made ex prate at the hearing on 5-3-1964 and an order for eviction was made. The next day the first respondent in the application for eviction, the petitioner herein came in as the petitioner to have the ex prate order set aside. The counsel are agreed that the provisions of the Civil Procedure Code as to service of summons apply. It is admitted that the tender of the summons so far as the present petitioner is concerned was when he was boarding a bus. As regards the son, there was no serious attempt whatsoever at personal service. However the Revenue Divisional Officer refused to set aside the ex prate order holding that there has been due service. While originally setting the respondents ex prate, the revenue Divisional Officer has proceeded in the view that the summonses sent by registered post had been refused by the addresses.

(3.) IT is now found from the endorsements on the summonses sent by registered post that they were returned as the addressees were not found. That being so, and there having been no attempt at all at personal service so far as the second respondent is concerned, it could not be said that there has been due service by affixture: see Pichai Ammal v. Vellayya Thevar,