VITTA VENKATACHALAM Vs. SIVAPURAM SUBBAYYA

JUDGEMENT

(1.) THIS is a Civil Revision Petition filed by the plaintiff in respect of an order made by the District Judge of Kurnool on appeal by the defendant against an order made by the District Munsif of Markapur. On application by the defendant the District Munsif refused to set aside the decree passed against him ex parte. The District Munsif dismissed the application holding that the summons in the case had been duly served within the meaning of Art. 164 of the Indian Limitation Act and that therefore the application to set aside the decree passed ex parte more than 30 days from that date did not lie. The service which the District Munsif held to be such due service within the meaning of Art. 164 was substituted service of summons ordered by the court. As the defendant's application to set aside the decree was dismissed, he appealed, and, on appeal, the learned District Judge reversed the order of the District Munsif, as I find, mainly on the ground that there was no satisfactory proof before the District Munsif of the substituted service ordered by the Court. It seems to me that in this matter the learned District Judge was clearly wrong. It is on the applicant, who wants the decree passed against him ex parte set aside, to establish that the summons in the suit was not duly served on him, and for the purpose of establishing it he would certainly be entitled to allege and prove that there was no service at all as ordered by the Court and that, even assuming that a substituted service could be regarded as due service for the purpose of Art. 164, no such substituted service as ordered by the Court was as a matter of fact effected. The petition of the defendant for setting aside the decree passed ex parte has been read in Court. There is no allegation there with regard to summons not having been effected by substituted service as ordered. Therefore the fact of effecting the substituted service was not really put in issue, and, though Mr. Govindaraghava Aiyar tried to show from a reading of the judgment of the District Munsif that it was put in issue, I am satisfied that the only matter that was argued before the first court was whether substituted service was due service under the article. Seeing therefore that the Lower Appellate Court has reversed the order of the District Munsif on the ground which was not really taken or put in issue in the first court and in spite of the finding clearly indicated in the judgment of the District Munsif that substituted service was effected, I should have been prepared to hold that it did sufficiently raise the question of jurisdiction to justify this Court interfering on revision. But the next question is whether having regard to the other circumstances in the case I am called upon to do so. The ground on which the District Munsif held that the petitioner was duly served was that substituted service was ordered against him on proper grounds and that substituted service was effected. I am unable to see why the learned District Munsif, while referring to the tender of summons previously to the defendant and his refusal to accept the same as recorded, I take it, on the summons issued by the Court, did not proceed to find whether there was in fact such a tender and refusal and why that was not proper service in law. My difficulty however in that matter is enhanced by the fact that the Lower Appellate Court apparently came to the conclusion as a fact that there was no satisfactory proof of such tender or refusal It is very much to be regretted why, in the face of the evidence apparently given by the petitioner-defendant that he was not aware of the suit or any proceedings therein, the plaintiff-decree-holder did not adduce even the evidence of the bailiff who made such tender and made the endorsement thereon. The plaintiff has himself to thank if he did not produce before the Court satisfactory evidence to rebut the case of the petitioner that he had no knowledge of the suit or proceedings therein. However I should have been then disposed to interfere and set aside the order of the lower appellate court if I had been satisfied that the order made by the learned District Munsif was right and that it should be restored in the interests of justice. For the purpose of my decision I must take it that no previous tender or refusal of the summons had been proved. If so, the only question is whether substituted service within the meaning of the Procedure Code is due service within the meaning of Art. 164 of the Limitation Act. The learned vakil for the petitioner has drawn my attention to two judgments of this Court ; one is in the case of Narasimha Chettiar v. Balakrishna Chettiar (1926) 52 MLJ 512. In that case undoubtedly as pointed out by the learned vakil for the petitioner, Mr. Justice Madhavan Nair, sitting as a single Judge, came to the conclusion that in the case of substituted service, summons is duly served for the purpose of Art. 164 even though it does not in fact come to the defendant's knowledge. Of course, we are not now concerned with the question of knowledge. With all respect to the learned Judge I am unable to agree that service of summons by substituted service under order of Court could possibly be regarded as due service for the purposes and within the meaning of Art. 164 of the Limitation Act. The result of so holding would undoubtedly be that in no case in which a defendant is served according to any of the rules of the Procedure Code could it ever be held that there was no due service. Unless it is shown by the defendant that there was no service at all really effected as the records show and that entries or endorsements were mere forgeries or fabricatons, no defendant can ever establish that the summons in the suit was not duly served. The learned vakil for the petitioner has also drawn my attention to another case Doraiswami Aiyar V/s. Balasundaram Aiyar (1926) 52 MLJ 477, where Mr. Justice Wallace also, sitting as a single-Judge, held that the word duly in Art. 164. is not equivalent to personally . I agree that the word duly does not mean personally . The learned Judge was undoubtedly right when he decided that the lower appellate court in the case before him was wrong into launching on any investigation of the propriety of the substituted service ordered by the court, and it seems to me that that was the ground on which the learned Judge held that the lower appellate court had no jurisdiction. Another case not reported was also referred to by the learned vakil for the petitioner, the judgment of Waller and Madhavan Nair, JJ., in C. M. A. No. 348 of 1925. In that case, the question was whether the service by affixture to the outer door when there was no agent of the defendant or male member on whom the summons can be served was proper service, and it was held that that was due service within the meaning of the article. The question in this case is not however whether service of the summons on the defendant in any of the various manners indicated in the provisions of the Civil Procedure Code, Order 5, relating thereto is or is not due service, but whether substituted service is due service. I am prepared to hold that, for instance, if the defendant should be absent, service on any male member is undoubtedly due service; so is service on an agent or on a servant under circumstances indicated in Order 5 and so on. But when it comes to a question of substituted service, it seems to me that the very expression substituted service clearly and conclusively indicates that it is not due service, the service that is due to the defendant or that is due according to the provisions of law for the purpose of service. For the purpose of Art. 164, substituted service therefore could not possibly be regarded as due service. I do not at all see why, adopting such a construction as Mr. Jatstice Madhavan Nair appears to have done, the Art. 164 should be whittled down in the manner it would undoubtedly be. I do not for my part believe that the legislature really intended in enacting the third column of Art. 164 to confine the scope of the section only to cases where the actual service directed by the court is shown not to have been effected at all in that manner. We may also have regard to what is obviously the object of the legislature in providing that in cases where the summons is not duly served the time begins to run from the date on which the applicant has knowledge of the decree. The implication seems to be clear that in cases where the summons is duly served the presumption may well be that he has knowledge of the decree, or at any rate if he does not get knowledge of the decree, it was ascribable only to some fault on his part or on the part of those near about him who ought to have known better. I am therefore unable to agree with the view taken by the District Munsif that substituted service of summons within the meaning of the Procedure Code is due service within the meaning of Art. 164. The District Munsif has not found that there was any other kind of due service. If therefore in this case I should have been satisfied that the order of the District Munsif which was set aside on appeal by the learned District Judge was itself wrong, I should have been prepared to interfere and set aside the order of the District Judge, because I am not satisfied with the grounds on which the learned District Judge has reversed the order of the District Munsif. But as I have come to the conclusion that the order of the District Munsif was wrong and that in my judgment the proper order has somehow come to be made by the District Judge, I do not feel called upon to interfere with it. The petition is therefore dismissed, but in the circumstances I make no order as to costs.