KHIRODA SUNDARI DASI Vs. NABIN CHANDRA SAHA

JUDGEMENT

(1.) This appeal is directed against an order of refusal of the Court below to set aside an ex parte decree. The respondent instituted a suit against several persons to recover a large sum of money alleged to be due from them as members of a partnership concern. The suit was decreed ex parte. Two of these defendants, now appellants before us, made an application to set aside that decree on the ground that they had no knowledge of the suit and could not appear to defend it. The Subordinate Judge has held that no case has been made out to justify an order to set aside the ex parte decree. On the present appeal, the decision of the Subordinate Judge has been assailed on two grounds; namely, first, that the summonses in the suit were not duly served upon the appellants; and, secondly, that they were, at any rate, prevented by sufficient cause from appearing when the suit was called on for hearing.

(2.) With regard to the first branch of the contention of the appellants, it is necessary to bear in mind that they are purdanashin ladies and are the widows of one Peary Mohan Shah who is alleged to have been a member of the firm. According to their case, they lived separate from the other members of the family to which their husband belonged, and neither their husband nor they themselves had any concern with the partnership. The return of the peon was to the effect that as they could not be found and as there was no authorised agent to receive summonses on their behalf, the copies of the summonses and plaint were affixed on the main gate of their dwelling house. The peon has been examined and his deposition in Court is substantially to the same effect. On behalf of the appellants, it has been contended that there was no valid service of summons upon them; and in support of this view, reliance has been placed upon the decision of the Judicial Committee in Clark v. Rouplaul Mullick 2 M.I.A. 263 : 3 Moo. P.C. 252 : Morton 403 : 1 Sar. P.C.J. 188 : 18 E.R. 300 : 13 E.R. 300 : 13 E.R. 106 : 1 Ind. Dec. (o.s.) 1139. Our attention has also been invited to rules 12, 15, 17 and 20 of Order V of the Civil Procedure Code of 1908. Rule 12 provides that wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which cane service on such agent shall be sufficient, in the case before us, it was not practicable to effect service on the appellants in, person; as by the custom of the country, the serving officer could not obtain access to them; nor had they an agent empowered to accept service. Consequently it was impossible to comply with the requirements of Rule 12. Rule 15 provides that where, in any suit, the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him. There has been considerable discussion at the Bar as to the meaning of the expression where the defendant cannot be found and we have been asked to determine whether the expression can be appropriately applied to a case where the serving officer is not able to obtain access to a purdanashin lady, who, it is known, resides in a particular house. We shall presently deal with this question in connection with Rule 17. But, apart from this point, it is plain that Rule 15 has no application to the circumstances of the present case. The appellants had no agent empowered to accept service of summons on their behalf, nor was there any adult mate member of their family who resided with them and Could accept service on their behalf. We next come to Rule 17 which is in these terms: Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or whore the serving officer, after using all due and reasonable diligence, cannot and 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, and shall then return the original to the Court from which it was issued with a 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 (if any) by whom the house was identified and in whose presence the copy was affixed." The service, in the case before us, was effected in accordance with Rule 17, and the question for consideration is, whether that was valid service. The first portion of Rule 17 clearly is no bearing upon the case before us. There was no refusal on the part of the appellants or their agent or any male member of their family to sign the acknowledgment; no question of refusal arises, till the serving officer has delivered or tendered a copy of the summons under rule lb to the defendant personally or to his agent or other person competent to accept service on his behalf. The question consequently narrows down to this. Is this a case where the serving officer, after using all duo and reasonable diligence, could not find the defendant?" In our opinion, Rule 17 is applicable to a case of the description now before us, where the serving officer is not able to obtain access to the purdanashin lady who has to be served and cannot deliver or tender a copy of the summons to her. There is no decision in Indian Courts directly in point, and the ruling of the Judicial Committee in Clark v. Rouplaul Mullick 2 M.I.A. 263 : 3 Moo. P.C. 252 : Morton 403 : 1 Sar. P.C.J. 188 : 18 E.R. 300 : 13 E.R. 300 : 13 E.R. 106 : 1 Ind. Dec. (o.s.) 1139 is of no real assistance in the solution of this problem. In the first place, the order given in that case was for service upon an agent of the lady concerned, in conformity with the provisions of Sections 13 and 15 of Regulation 111 of 1803. In the second place, there is no special provision in the present Code of Civil Procedure for service of summons on purdanashin ladies as there was in the Regulation mentioned. In our opinion, where it is impossible for the serving officer to obtain access to the person to be served, either by reason of the custom of the country or for any other reason, the case may, without undue stretch of language, be held to be covered by the description "where defendant cannot be found by the serving officer." This view is in accord with the decision in Carter v. Youngs (1877) 42 N.Y. Sup. Ct. (10 Jones and S.) 169. The defendant was confined to his house with illness and his wife refused to permit the officer to have access to him. It was r. led that the case was one in which the defendant could not be found," and substituted service was ordered. To the same effect is the decision in MacCarthy v. MacCarthy (1879) 16 Hun. N.Y. 546 where the father of the lady to be served would not allow her to appear before the serving officer. The case of LeGrand v. Fairall (1892) 86 Iowa 211 : 58 N.W. 115 is clearly distinguishable; there, the statutory provision required that service could be effected by leaving a copy of the summons only if the defendant could not be found within the country of his residence"; the lady to be served was sick and the serving officer could not see her; it was ruled that the substituted service could not be allowed. "We are not unmindful that this view of the law may in some instances render the service practically anfractuous and defeat the very object of the service of summons upon the defendant, namely, to apprise him that a suit has been instituted against him in a Court of Justice: Hope v. Hope (1854) 4 De G. M. and G. 328 : 23 L.J. Ch. 682 : W.R. 698 : 43 E.R. 534 : 102 R.R. 146; Kistler v. Tettmar (1905) 1 K.B. 39 : 74 L.J.K.B. 1 : 53 W.R. 230 : 92 L.T. 36 : 21 T.L.R. 24. The class of cases we have in view is of the description now before us, namely, where a purdanashin lady is not able to accept service personally, has no agent empowered to accept service on her behalf, and has also no adult male member in her family upon whom service may be effected. In such a case as this, valid service is effected under the provisions of Rule 17 if the serving officer affixes a copy of the summons on the outer door or some other conspicuous part of the house in which the lady ordinarily resides, and yet the result may be that the person served is really never apprised of the suit. It is plain, however, that a narrow construction cannot be placed upon the terms of Rule 17, so as to restrict their operation and to exclude cases clearly covered thereby. But it is worthy of note that there is no real danger of injustice, if the provisions of Rule 19 are strictly carried out by the Court. That rule imposes upon the Court the duty to satisfy itself that service has been properly effected, and the Court is authorised either to declare that the summons has been duly served or order such service as it thinks fit. Consequently, it IS open to the Court, even where there has been a technical compliance with the provisions of Rule 17, to order service in another mode if the Court thinks fit to do so, in the interests of justice. The Court may, in a case of this description, direct the issue of summons to purdanashin ladies by means of notice sent by registered post, so that the cover may in due course reach the lady herself, in this view, we are of opinion that the case before us is covered by Rule 17 and that as the requirements of that rule have been fulfilled, the appellants cannot succeed on the ground that the summonses were not duly served on them within the meaning of Rule 18 of Order IX of the Code. With regard to the second branch of the contention of the appellants, namely, that they were prevented by sufficient cause from appearing when the suit was called on for hearing, it is material to state that they were examined on Commission, when they pledged their oath that they had no knowledge of the suit and consequently could not defend it. The respondent decree-holder seeks to meet this allegation by proof that the ladies must have known of the suit, as they appeared in Court through a Pleader to oppose his application for attachment before judgment. "This contention is rested on a vakalatnama which purports to bear the signature of one of the appellants, Golap Sundari Dasi. It was also signed on behalf of the other appellant, Khiroda Sundari Dasi, by her officer Kamikhaya Ranjan Dutt. The decree-holder, however, did not take steps in the Court below to prove what purports to be the signature of Golap Sundari Dasi on the vakalatnama; nor did he establish that Khiroda Sundari Dasi had authorised Kamikhaya Rajan Dutt to sign the vakalatnama on her behalf. As the ladies were examined on Commission, it was a singular omission on the part of the decree-holder that the vakalatnama was not put to either of them. But even if this defect in proof had been remedied, the question would require investigation, under what circumstances and on what representation was the vakalatnama signed, and what information, if any, was received by the ladies in respect of the suit instituted against them. The evidence has not been directed to elucidate these vital points, and we have accordingly been pressed by the respondent to allow additional evidence to be taken at his instance at this stage. We are clearly of opinion that we should not accede to this request, as the respondent had ample opportunity to substantiate his case in the Court below. The position consequently is, that the respondent has failed to rebut the allegation on oath made by the ladies that they had no knowledge of the suit the truth of their assertion appears extremely probable when we remember how the summons is said to have been served on them. There is further the significant circumstance that the ladies had successfully contended before Mr. Justice Fletcher in another proceeding that they were not partners of the firm; and there is considerable force in the argument that if they had been apprised of the proceedings in this suit, they would undoubtedly have repeated the defence which they had previously taken so effectively. The surrounding circumstances all point to the conclusion that the appellants never received actual intimation of the suit.

(3.) Finally, it has been argued on behalf of the respondent that as Kamikhaya Ranjan Dutt, an officer of Khiroda Sundari Dasi, was aware of the suit, the ladies had constructive notice thereof. No such contention was raised in the Court below and no foundation has been laid in the evidence for any possible ground on which constructive notice could be imputed to the appellants. We hold accordingly that the ladies have established that they had no knowledge of the suit and that they were prevented by sufficient cause from appearing when it was called on for hearing.