Madras High Court
Abdul Salam Rowther vs State Bank Of India Represented By Its ... on 19 March, 1993
Equivalent citations: (1993)2MLJ124
ORDER Thangamani, J.
1. The appellant is the second defendant in O.S. No. 184 of 1982 on the file of learned Subordinate Judge of Villupuram. On 7.10.1982 the suit was decreed ex parte against him. Thereupon he came forward with I.A. No. 469 of 1987 under Order 9, Rule 13, C.P.C. to set aside the ex parte decree against him on the allegation that he was not served with any summons in the suit. He came to know of the suit fort he first time only on 11.7.1987 when the notice of the execution was received. His claim was contested by the plaintiff on the ground that there was service of summons by affixture and this plea is set out by the appellant only in order to avoid giving proper explanation for his non-appearance. The court below has negatived the contention of the appellant and dismissed his application with cost. And this appeal is directed against the said order.
2. Learned Counsel for the appellant submitted that he was not served with summons in the case and he became aware of the decree only when notice in execution proceedings was received by him and that the court below instead of addressing itself to the question whether there was sufficient cause for his non-appearance when the suit was called on 7.10.1982 for hearing, has dealt with the merits of the case which is totally irrelevant for the purpose of the application. We are now concerned only with the question, whether there was due service of summons on the appellant for the hearing dated 7.10.1982. The notes paper in the suit is not available since it is stated to have been destroyed. It does not appear front the available records that there was any personal service of summons on the appellant. The court below also proceeds on the basis that there was only service by affixture. In this connection, learned Counsel for the appellant points out that in the plaint the address of the second defendant/appellant is given as No. 17, V.O.C. Street, Villupuram, whereas in the copy of the summons he is stated to be residing at No. 24, V.O.C. Street, Villupuram and the specific endorsement of the bailiff is that he enquired the whereabouts of the appellant on 18.9.1982 in the address mentioned in the summons which is 24, V.O.C. Street, Villupuram and learnt that he had gone out and it is not known when he would return. So, he affixed the summons on the outer door of the above mentioned house. This would indicate that the bailiff has not searched for the appellant in the address where he was stated to be residing as per the plaint averments and instead he made enquiries in some other door number and the affixture was also made therein.
3. Order 5, Rule 17 states that where the serving officer after due and reasonable diligence, cannot find the defendant who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time 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, and shall then return the original to the Court with a report endorsed thereon stating that he has so affixed the copy, the circumstances under which he did so and the name and address of the person by whom the house was identified and in whose presence the copy was affixed. It is evident that in this case the bailiff has not affixed the summons where the defendant ordinarily resides as per the plaint.
4. Further, under Order 5, Rule 12, C.P.C. wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service in which case service on such agent shall be sufficient. And, Order 5, Rule 15 stipulates where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service maybe made on any adult member of the family, whether male or female, who is residing with him. But, it does not appear from the endorsement of the bailiff whether any adult member of the family was available in the house. The endorsement does not say that the house was locked. So, it cannot be said that the requirements of Order 5, have been satisfied in this case.
5. Under Order 5, Rule 19-A, the Court shall, in addition to, and simultaneously with, the issue of summons in the manner provided in Rules 9 to 19 also direct the summons to be served by registered post, acknowledgment due. But, it does not appear that any such endeavour has been made to send summons by registered post also. The records do not disclose that any substituted service as contemplated under Order 5, Rule 20 was also resorted to.
6. In Subramania Mudaliar v. Ideal Finance Corporation, 90 L.W. 484, the judgment-debtors were not in their respective residences at the time the process server called. The report of the process server did not say that the judgment-debtors did not have any agents to receive the notices on their behalf. Nor did it appear that any attempt was made to serve the notices on any adult members of the family in their residences. The process server straightaway proceeded to affix the notices, stating that the judgment-debtors were out of town. Balasubramanyan, J. has held that this, surety, is not good service under .O.5, Rule 17, C.P.C. Under the Code of Civil Procedure, affixture cannot be resorted to before exhausting all attempts at direct service on the persons named in the notice or summons. The court having decided to issue notice must see to it that the notice is properly served. In Padmanabhan v. R.R. Shah and Ors. (1988)1 L.W. 1, summons were not served on the defendant, due to wrong address given by the plaintiff though he was aware of the correct address. There upon, publication in a newspaper was effected. A Division Bench of this Court has held that as the summon sent was hot served on the defendant and as he was not aware of the proceedings, he can certainly claim that he was prevented from appearing by sufficient cause when the suit was called for hearing. Under Order 9, Rule 13, C.P.C., a defendant against whom an ex parte decree has been made, may apply to the court for setting aside the decree (1) if he satisfies the court that the summon was not duly served; and (2) that he was prevented by any sufficient cause from appearing when the suit was called for appearance. In Pattammal v. Velou Jegannathan, 1988 T.L.N.J. 389, the suit summons was addressed to a place in Pondicherry and it was returned as unserved. According to the defendant, he was living in Bangalore and even in the summons which was taken to Pondicherry his correct address was not given but a wrong address was found and therefore the summons was returned. Thereafter straightaway substituted service by publication was obtained and effected in Dhinathanthi which had no circulation in Karnataka. Therefore, the defendant claimed that he had no knowledge of the suit at all and an ex parte decree was passed. The Division Bench held that if the defendant shows that inspite of substituted service he had no knowledge of the suit on the date of hearing the ex parte decree should be set aside.
7. In Mrs. Emkamma Bai v. Ravikumar (1992)1 L. W. 54, the duty of the process server under Order 5, Rule 15, C.P.C. has been stated by Srinivasan, J in this manner. Under Order 5, Rule 15, C.P.C., it is an essential precondition that the process-server should ascertain whether there was likelihood of the defendants 3 and 4 being found in the residence within a reasonable time, If the defendants 3 and .4 could be found at their residence within a reasonable time, then the process-server should wait or go to the residence of the defendants once again on another day and try to serve on them at their residence personally. In case where the defendants may not be found at their residence within a reasonable time, the process-server could serve the summons on any dull member of the family, whether male or female, residing with such defendant. As the process-server has not ascertained such fact in the present case and has not made any reference in the affidavit to the factum of his ascertaining as to whether there is any likelihood of the defendants being available for service at their residence within a reasonable time, the service of summons on a person, who has described himself as the 4th defendant's brother and 3rd defendant's son is not a valid service. It cannot be countenanced in law as service within the meaning of Order 5, Rule 15, C.P.C. In Kuttiappa v. Rangasami , also Srinivasan, J. has reiterated the procedure to be followed as under.
Under Order 5, Rule 15, C.P.C., if the defendant is absent from his residence at the time when the service of summons is sought to be effected on him, the process server must be satisfied, (i) that there is likelihood of the defendant being found at the residence within a reasonable time, and (ii) he had no agent empowered to accept the service of summons on his behalf and in that event, service may be made on any adult member of the family, whether male or female, who is residing with him. Order 5, Rule 17 is to the effect that when the defendant or his agent refuses to sign the acknowledgment or where the serving officer, after using all due and reasonable diligence cannot find the defendant who is absent from his residence and there is no likelihood of his being found at the residence within a reasonable time and if there is no agent or other person to receive the summons, 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 and shall then return the original to the court with 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 by whom the house was identified and in whose presence the copy was affixed.
8. It does not appear from the records in this case that any endeavour has been made to follow the procedure prescribed in Order 5, C.P.C. in the service of summons as already referred to. Rule 12 of Order 5 requires 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 case service on such agent shall be sufficient. Under Order 9, Rule 6, C.P.C., where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then,
(a) if it is proved that the summons was duly served, the Court may make an order that the suit be heard ex pane.
In this case, there is no record to indicate that the Court was satisfied that there was due service of summons.
9. In the result, the appeal is allowed. The fair order and decretal order passed in I.A. No. 469 of 1987 are set aside. The said application is allowed and the ex parte decree is set aside. Parties are to bear their respective costs throughout.