Decided on April 08,1953



Govinda Menon, J. - (1.) This appeal has to be allowed and the 'ex parte' decree set aside. What happened was that the third defendant, who is the appellant before us was said to have been served by substituted service and the learned Judge, therefore, held that that was sufficient service of notice on him. Thereafter the suit was decreed 'ex parte'. An application by the third defendant to set aside the decree was dismissed by the successor of the learned Judge following the decisions of this Court in - 'Shariba Beeby v. Abdul Salam', AIR 1928 Mad 815 (A) to the effect that if substituted service is effected under Rule 20, Order 5 such service is effectual as if it had been made on the defendant personally and therefore such service must be deemed to be effective service within the meaning of the expression in Article 164 of the Limitation Act. In that case, the learned Judge referred to earlier decisions in - 'Doraiswami Ayyar v. Bala-sundaram Ayyar', AIR 1927 Mad 507 (B) and -- 'Narasimha Chettiar v. Balakrishna Chetti', AIR 1927 Mad 487 (C). But the trend of decisions subsequent to this is exemplified in - 'Gynammal v. Abdul Hus- sain', AIR 1931 Mad 813 (D) and - 'Muhaiden Khader Meera Sahib v. Lakshmanan Chettiar', AIR 1931 Mad 812 (E), which are to the con trary effect. In the earlier case, Reilly and Ananthakrishna Aiyar JJ. have held that sub stituted service cannot always be deemed to be due service within the meaning of Article 164 of the Limitation Act or Rule 13, Order 9 of the Civil P. C. Due service within the meaning of those sections is not service which is technically and formally correct as basis for proceeding 'ex parte' but service which has been effective and which has achieved the object of service by bringing the claim against him to the know ledge of the defendant or respondent. To the same effect is the decision in ' AIR 1931 Mad 812 (E)'.
(2.) We have, therefore, to see whether on the facts of this case, the third defendant had known about the filing of the suit & the existence of the proceeding against him in Coimbatore Sub-Court. The first notice was taken to him on 19-21946 at Bombay where he was employed in the Government Medical Stores in Byculla. The return of the bailiff was that when notice was taken to the third defendant at 11-15 A.M. he was not found. On enquiry with the Superintendent of the Government Medical Stores, the bailiff came to know that the third defendant was transferred to Raichur in the Government Medical Stores. Hence the summons was returned.
(3.) Even though this fact must have been brought to the notice of the Court which issued the summons, and thereby to the plaintiff, a further notice was taken to the third defendant to the same address. How the plaintiff could have taken a notice to the same address when the return was that he had been transferred from the Government Medical Stores, Byculla passes one's comprehension. We do not find any endorsement on this summons. Thereafter the plaintiff filed an application for issuing substituted service and the affidavit in support of that application is really very vague and contains allegations which on the face of it cannot be said to be true. What he states is: "Though several summonses were issued in this suit to defendants 1 to 3 through Court and by post, the said defendants could not be served in person. Though the defendants 1 to 3 in the suit are residing in their native village they go outside very often." It is plain that the third defendant did not live permanently in his native village, but was employed in Government Medical Stores in various parts of the country. On this affidavit the Subordinate Judge ordered substituted service and by publication in one issue of the "Hindu" of 16-10-1946. A further affidavit dated 179- 1946 by the plaintiff is to the effect, that the third defendant was not a cashier in the Medical Stores at Bombay and also that he never joined the Military service. This also on the face of it is false. In these circumstances we cannot take the substituted service by the publication in the one issue of the "Hindu" as proper service. So the third defendant did not know about the filing of the suit, nor was notice served on him as contemplated under Article 164 of the Limitation Act. He had therefore sufficient cause for not appearing when the suit was taken up for hearing. The 'ex parte' order is set aside and the suit will be remanded to the lower Court to be tried on the merits. The appellant will have his costs from the plaintiff-respondent.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.