KASSIM EBRAHIM SALEJI Vs. JOHURMULL KHEMKA

JUDGEMENT

(1.) This appeal is from an order made by Mr. Justice Hasan Imam on the 3rd of March in this year, in which he refused to set aside a decree for specific performance of an agreement between the plaintiff and defendant. The decree was made on the 9th of December 1914, and it was made ex parte, the defendant not being present or taking any part in the proceedings. Then in consequence of a letter which was dated the 22nd of January 1915 and written by the plaintiff s Solicitor to the defendant, an application was made to Mr. Justice Imam to set aside the decree on the ground that the writ of summons had not been served upon the defendant. The learned Judge refused to set aside the decree and this is an appeal from his judgment.

(2.) Now, the service was supported in the first instance upon an affidavit in the usual form, which is to be found at page 15 of the paper-book, in which one Sitaram, who was employed by the plaintiff, and another Ishak, who was in the employ of the Sheriff of Calcutta, swore that they had been to the dafendant s house where he ordinarily lived and resided on the 1st, 3rd and -4th day of August, that they could not find him there, that they could not see any adult male member of his family, that they had called out his name in the usual way but got no response and that thereupon the writ had been posted upon the premises, and it was upon that affidavit of service that the learned Judge of the Court of first instance proseeded to give his decree.

(3.) Now, it turns out that the defendant did not reside at the premises, which are mentioned in the affidavit, namely, No. 1, Amra-tola Lane, in Calcutta. What took place was that these two men whose names I have already mentioned, one in the employ of the plaintiff and the other in the employ of the Sheriff of Calcutta, went to the place where the defendant carried on business with his partner, and tried to find him there on the days in question, that the bailiff went into the business premises and saw somebody seated on a chair on each occasion, who told him that the defendant was not at that time at the place, and that then having cried aloud his name three times he posted the writ of summons upon the premises. The question is whether that is sufficient service. I may say at once that in one sense L regret that we have to allow this appeal, because I have not much doubt in my mind, speaking for myself, that the institution of these proceedings did come to the knowledge of the defendant, and I do not think that the defendant has any merits in this application. But that is not the question. If we were to decide that what was done in this case was sufficient service of the writ, it might be taken as a precedent on other occasions. Inasmuch as I do not consider that what was done in this case was sufficient service, it would not be right for us to say that it was sufficient service, because we are strongly of opinion that the defendant knew of the issue of the writ. In my judgment, where it is a question of substituted service, and the defendant has not been served personally, it is most essential that the requirements of the rules should be strictly observed in all respects.