BALDEODAS LOHIA Vs. SUBKARANDAS GOENKA

JUDGEMENT

(1.) This is an application by the members of the defendant firm to set aside a decree in favour of the plaintiff which was obtained ex parte on the 15 April 1924. The plaint was filed on the 28 February 1924, and summary proceedings were taken under Order XXXVII. The defendants make this application pursuant to the provisions of Older IX, Rule 13 of the Code of Civil Procedure, and they will be entitled to have the ex parte decree against them set aside and the suit restored on such terms as the Court may deem to be fit if they satisfy the Court either that the summons was not duly served, or that they were prevented by any sufficient cause from appearing when the suit was called on for hearing. It is to be observed that the two branches of the rule are disjunctive, and the defendant whatever his position may be in respect of one branch, is entitled to the benefit of the section if he has satisfied the Court that he has made good his contention under the other branch. Having regard to the evidence which has been adduced before me I am satisfied that before the decree was made on the 15 April 1924, even if the defendants themselves were not cognizant of what had taken place, One Madanlal who was the authorised agent of the defendants to take charge of any legal proceedings which might be preferred by or against the defendants, was fully aware that the suit had been launched, and would eventually result in a decree against the defendants unless steps were taken by the defendants to defend the suit.

(2.) On the 17 March, which was the day upon which substituted service was effected by affixing a copy of the writ of summons on the door of 12, Banstolla Gully, Calcutta, where the <JGN>Page</JGN> 2 of 5 defendants ordinarily resided and carried on business Madanlal was present; he saw the summons affixed; and it was through his intervention that the durwans of the defend-ants at 12, Banstolla Gully, permitted the Sheriff's peon to do his duty in affixing the writ of summons to the door. More than that, Madanlal on the 24 of March approached Babu Satyendra Nath Mitter, an attorney of the Court, for the purpose of obtaining advice as to what the defendants should do, and, having received the advice, Madanlal left the office of Babu Satyendra Nath Mitter, remarking to the attorney that he would return on the next day and bring funds With which to meet any possible sum which might have to be deposited in Court as a condition of obtaining leave to defend the suit. On the following day, however, Madanlal did not attend the Attorney's office. According to the defendants no steps were taken by them, because nothing was known about these proceedings until notice of attachment had been affixed on the premises under which the property of the defendants at 396, Upper Chitpore Road, and 12, Banstolla Gully, were attached in execution of the ex parte decree which had been obtained on the 15 April. I think it extremely probable that the defendants were aware that these proceedings had been taken against them before the decree was obtained, and as they took no steps either to enter appearance or to apply for leave to defend or otherwise to protect their rights, they fail to bring themselves within one branch of Rule 13, for in my opinion, they were not prevented by any sufficient cause from appearing or taking steps to obtain leave to defend. I am, therefore, 10 to give them an opportunity at this late stage to put their defence before the Court. But as I have observed, the branches of Rule 13 are disjunctive, and it is still open to the defendants, if they are in a position to do so, to prove to the satisfaction of the Court that the summons in the suit was not duly served upon them. I apply myself, therefore, to a consideration of the circumstances under which the service of summons in this suit was effected. It is of the utmost importance in every case for which provision for personal service is made in the Civil P. C. that all available steps should be taken to effect personal service. In this case personal) service upon the defendants was not effected. The plaintiff, however, claims that substituted service was duly effected under Order V, Rule 17. That rule provides, inter alia, that " 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". The defendant with respect to this branch of the rule has preferred two contentions. The first is that the service as alleged by the plaintiff was never effected at all, and the second, if the defendants were served, that they were not duly served. In my opinion, service was effected. One Jadunath Singh a Sheriff peon with 18 years service, attended at 12, Banstolla Gully with Ramkissen Brahmin, a gomosta of the plaintiff, for the purpose of effecting personal service upon the defendants. These two men went to 12, Banstolla Gully, where admittedly the defendants both carry on the business and ordinarily reside about 5 o clock in the afternoon of the 15 March. There were two or three persons sitting at the outer gate, Jadu asked them if the Babus were in and the reply was that they <JGN>Page</JGN> 3 of 5 were not in. The peon and the identifier Ramkissen then went away. They came again to the same place about the same hour on the 16 March, and again asked 3 or 4 persons at the gate if the Babus were in, and received again the same reply, "they were not in". The peon then stated that he proposed to go inside the house to search for the defendants, but the durwans at the gate said that they would resist any attempt on the part of the Sheriff's officer to enter the house. The peon and Ramkissen then went away. Again, on the 17 the same two men about the same hour came to 12, Banstolla Gully, and asked if the Babus were in, and the durwans at the gate said that they were not in. Jadunath then said that he proposed to go inside, and personally serve the defendants. Once more he was told that he would be resisted by the durwans if he attempted to do so. The peon then called out in a loud voice the names of the defendants and demanded that they should come out and accept service of the summons, but no answer came. Thereupon the peon commenced to affix with paste the writ of summons to the outer gate, but the retainers of the defendants resisted his attempt to do so. At this stage Madanlal appeared upon the scene and persuaded the defendants and the other agents of the defendants to allow the peon to do what he considered to be his duty. The write of summons was then affixed to the outer gate, and the peon and Ramkissen went away. As they were leaving the premises they noticed that Madanlal took the writ of summons off the gate. Now, the question which I have to decide, having regard to the terms of the Order V, Rule 17, is whether the defendants were duly served, and, in my opinion, that depends upon whether the peon before he affixed a copy of the writ of summons to the gate, had used all due and reasonable diligence to discover the whereabouts of the defendants. In my opinion, the law on the subject is to be found stated by Sir Comer Petheram, C.J., in Cohen V/s. Nursingdas Auddy (1892) 19 Cal. 201 where his Lordship observed. "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 a service like this can be effected it must be shown that proper efforts had 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 and because he has not been found there to affix the summons on the outer door of his house. A proper attempt must be made to find the defendant and serve him with the writ." Again in Sakharam Bhaskar v. Padmakar Mahadeo (1906) 30 Bom 623 a similar question arose. The bailiff of the Court reported that he had affixed a notice of an appeal on the outer door of the respondent's house, and that the "respondent was not found, and his adult undivided son having refused to receive a copy of the notice, it was affixed to the front door of his house." Jenkins, C.J., in giving the judgment of the Court, observed with respect to the report of the bailiff that in the report " there is merely a statement that the respondent could not be found, but it does not appear that any effort was made to find him or that even an enquiry was made of his son who was found as to where the respondent was. The serving officer is not shown to have carried out the requirements of the Civil P. C.." On this subject reference may be made to Bhomshetti V/s. Umabai (1895) 21 Bom. 223, Subramania V/s. Subramania Aiyar (1897) 21 <JGN>Page</JGN> 4 of 5 Mad. 419, Sakina V/s. Gauri (1902) 24 All. 302. In each of those cases the serving peon was informed at the time when he attended at the residence or place of business of the defendant that the defendant had left, or would return in a few days, and in each of those cases the Court held that the circumstances disclosed in the peon's report did not justify the service being effected in a substituted manner. The case of Kassim Ebrahtm Sabji V/s. Johurmull (1915) 43 Cal. 447, was a clear one, because in that case the serving peon attended at the defendant's place of business when he thought that he was attending at his residence and in that case, as the Court held, there was no escape from holding that the writ of summons was not duly served. In my opinion, the effect of the authorities is that all available steps to effect personal service must be made before resort is had to the provisions of Order V, Rule l7. It is not enough to attend at the ordinary place of residence or of business or the place where the defendant personally works for gain, and to conclude that substituted service may be effected merely because at the time when the serving peon attends at such place the defendant does not happen to be there. In my opinion, it makes no difference whether the peon attends at such places once or three times. It is necessary in my opinion, that the serving peon, having discovered or believing that the defendant cannot be served at the time when he is attending, should institute proper enquiries to endeavour to ascertain where the defendant's whereabouts are. In my opinion, the serving peon before he can take advantage of the provisions of Order V, Rule 17, must attend at the right place and he must attend at a time when he may reasonably expect that the defendant will be present, and if he fails to find the defendant he must take reasonable steps to discover where the defendants may happen to be. In my opinion, the observations of Sir Comer Petheram, C.J., made in 1892 are at least as opportune to-day as they were 32 years ago. In my experience in these Courts I have come to the conclusion that the service of notices is often effected in a most perfunctory manner. But the result of not conforming strictly to the rules laid down in the Civil P. C. is that great hardship and injustice may be done. Now, applying the principles which I have enunciated to the facts of this case, it is quite obvious that service was not duly effected. The peon, after discovering that the defendants, at the time when he attended at 12, Banstolla Gully, were not in the house, made no enquiries whatsoever of anybody as to their whereabouts. It is conceded that the defendants were in Rajputana, but without making any attempt to discover their whereabouts the serving peon, after calling on them by name to come out and receive a copy of the summons, proceeded to effect substituted service by affixing a copy of the summons to the entrance gate. In my opinion, in this case the summons was not duly served, and under these circumstances the exparte decree and the attachment proceedings incidental thereto will be set aside, and the suit will be restored to the list. The question remains as to the terms upon which the case should be restored to the list. So far as the costs are concerned the condition which I think it right to impose upon the defendants in order that they may be in a position to take further proceedings to defend the suit is that they pay all the costs of this application in any event as of a hearing. Such costs are to be taxed forthwith and paid to the plaintiff's attorney, and are to be held by him until further order. <JGN>Page</JGN> 5 of 5

(3.) The plaintiff's solicitor undertakes to serve the defendant's solicitor with a copy of the summons tomorrow.