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TMI Blog1951 (7) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... no question arises about the service upon him. The service upon the other three defendants is utterly inadequate. I shall now proceed to describe the service effected upon them. 3. The writ of summons in respect of all these three defendants were transmitted to the Sealdah Court, and it appears from the return of that Court that they were served by a process-server of the name of Jadunath Dey. It has already been pointed out that defendant 1 is a partnership firm and defendants 2 and 3 have been, impleaded as parties in their capacity as partners of defendant 1. It will further be observed that the address of defendant 1 is given as 12, Cornwallis Street and it is stated that defendants 2 and 3 carry on business under the firm name and style of Bansen and Co. at the same address. Their residential addresses have not been given in the cause title. Service of the writ was effected on defendants l and 2 in the following manner. 4. On 22nd January 1951, the process-server went to premises No. 32A, Khelat Babu Lane, which, I am told, is the residential address of defendant 2, but which is nowhere mentioned in the cause title, and the process-server says in his return: "As on se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree. It is quite clear that service on all the three defendants have been made in utter disregard of the procedure imposed by the Code of Civil Procedure (as amended by our Rules). It is equally clear that the process-server had no knowledge of the elementary principles governing the service of writs in either individuals or partnership firms. The process-server went on three occasions not to the address given in the plaint, but to the residential address of the partners, one of whom is described as an "authorised employee" and not having found them, effected service by affixation. As I considered this service to be utterly inadequate, the plaintiff asked for an opportunity to call the process-server to depose about the manner of service and I readily acceded to the request as I was curious to find out the depth of ignorance of the process-servers in mofussil Courts regarding service of writs. I might mention that I have, apart from this case, examined severaj other process-servers in several other undefended suits and the results have been amazing. Without exception, these process-servers have displayed an utter ignorance of. the law and the rules regarding service o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, but from some letter of the attorneys. 7. In another suit Ganga Prosad Guptu v. Broadway Corporation Ltd. one Narendra Nath Mukherjee, a process-server of the Alipore Court gave evidence before me He also said that the rules of service were imparted to him by the Nazir of the Alipore Court about 16 years ago and since then he has not been informed of any change in the rules or the law regarding the mode of service. According to him also, he was expected to go to the defendant's place on three occasions, and if he could not find him for the third time, it was his duty to serve the summons by affixation. This witness did riot find it unreasonable to go and serve a company at 9 O'clook in the morning. 8. In a third case, Kishorilal Chowdhury v. Ramlal Moonra I had occasion to examine the process-server attached to the Sealdah Munsif's Court. According to him, this High Court had published a book in Bengali 15 or 19 years ago laying down rules for the service of process. That book was lying with the Nazir and was made available to the process-servers 15 or 16 years ago, since when they have not been told of any other rules. This man had been serving summons for the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected, it must be shown that proper efforts have been made to find out when and where head likely" to be at. home and go to the house at a time "when he can be found, not as seems to be done in this country to go to his house in a perfunctory way, and because he has not been found there to affix a copy of the summons on the outer door of his house. I think this affidavit is insufficient and it is as well that people should know that such service is not good service and that suits should not be tried as undefended suits on service as has been relied on in this case." 11. It will be observed that the learned Chief Justice was dealing with Section 80 of the Code of 1877, corresponding to Order 5 of the present Code Rule 17 of which introduced the words "after using all due and reasonable diligence". What constitutes "due and reasonable diligence" has been a matter of some controversy. It must of course depend on the facts and circumstances of each case but it has been firmly established that the mere temporary absence of a defendant from his residence or place of business does not justify service by affixation. It has almost become an unwritten law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h place once or three times. It is necessary, in my opinion, that the Serving Peon having discovered or believed that the defendant cannot be served at the time when he is attending, should institute proper enquiries to endeavour to ascertain the whereabouts of the defendant. In my opinion, the Serving Peon before he could take advantage of the provisions of Order 5, Rule 17 must attend at the right place and he must attend at a time when he may reasonably expect that the defendant may be present and if he fails to find the defendant he must take reasonable steps to discover where the defendant may happen to be. In my opinion, the observations of Comer Petheram, C. J. made in 1892 are at least as opportune today as they were 32 years ago. ,In my experience in these Courts I have come to the conclusion that the service of notices is often effected in a most perfunctory manner. But the result of not conforming strictly to the rules laid down in the Code of Civil Procedure is that great hardship and injustice may be done." 12. It is owing to the repeated pronouncements by the learned judges of this Court that the service of process was not being effected properly that rules we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servers to whose evidence I have referred to above have said that if on the third occasion when they called upon the defendant, they could find no one to enlighten them as to the whereabouts of the defendant, they would be justified in serving by affixation. Under the amended rules this is clearly wrong. In the absence of information regarding the defendant's whereabouts there can be no inference that there was no likelihood of his being found thereat within a reasonable time. At least one of the process-servers went to the extent of saying that he would be prepared to wait for half an hour or an hour on the third occasion, and, in his opinion, his duty ended there. Just as the words "due and reasonable diligence" gave rise to much controversy, the words "within a reasonable time" have given rise to some doubt and difficulty. Just as "diligence" depended upon the facts of each case, the question as to what was a "reasonable time" must be decided against the background of a particular case, and no hard and fast rule can be laid down. If the person is absent from his residence, then all possible enquiries are to be made to find out as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y discover all these facts, and to require him to do so, would render the service of processes an impossibility. I am quite aware that there do exist inveterate process-dodgers who are bent upon being obstructive. That however is no justification for relaxing the requirements of the law. If determined efforts are made, I think that service can be satisfactorily effected in the majority of cases. In a really difficult case, the Code of Civil Procedure has provided an adequate remedy in Rule 20 of Order 5. Under that rule, where the Court was satisfied that there was reasonable ground to believe that the defendant was keeping out of the way, or if for any other reason the summons could not be served in the ordinary manner, the Court could order summonses to be served by affixation at some conspicuous place of the Court House and at the house in which the defendant was known to have last resided or carried on business, or worked for gain. And these are not the only ways in which the Court might direct service to be effected. It could order service "in such other manner as the Court thinks fit" (also note the words "unless the Court otherwise directs" in Order 5, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which govern service on the persons abovenamed, for and on behalf of the defendant: Agent empowered to accept service: 19. (i) Rule 6 of Order3 lays down that any person residing within the jurisdiction of the Court, may be appointed an agent to accept service of process. Such appointment may be special or general and shall be made by instructions in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof, shall be filed in Court: see Papamma Rao v. Revenue Divisional Officer, Guntur AIR 1918 Mad 589 . This is a rule which is constantly infringed. All that is stated in the affidavit of service is that the writ was served on the 'authorised agent". This is not sufficient, as it must be shown how the agent satisfies the definition referred to above.. Sometimes it is said that the agent had "admitted that he was so empowered". That again is not sufficient, because the Court must be satisfied that the agent had authority and cannot go merely by his alleged admission. Service upon a 'Gomostha' or a servant by itself is not sufficient. Where service is effected upon a Gomostha, it cannot be assumed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying on trade or business through an agent, are considered as the recognised agents for the purposes of service of process. Under G. 3 Rule 3, any process served upon a recognised agent is as effectual as if it was served on the party in person. (iii) Manager or Agent in charge of business or work : 22. Where a suit relates to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons was issued, service on a manager or agent who at the time of service personally carries on such business or works within such limit, would be deemed as good service (O. 5 Rule 13). It may be observed that the first limitation is as regards the nature of the suit. The rule will not apply to all kinds of suits but only relating to business or work. The; manager or agent must be a person who is carrying on the business 'or work for and on behalf of I the absent owner. A mere servant employed to carry out orders is not such an agent, Goculdas v. Ganeshlal 4 Bom. 416, Reliance Marine Insu. Co. Ltd. v. Mohomed Omar Mahomed Tacoob 43 C. L. J. 576. (iv) Agent in charge of immovable property : 23. In this case, the suit must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Das A. I. R. 1918 Lah. 295). It does not follow however that service can be made on an adult male member of the- defendant's family without attempting to find out the defendant (Dharamchand v. Kanak 26 C. W. N. 359). (vi) Pleader of the defendant : 26. Under Rule 5 of Order 3, service on pleader of the defendant is good service. So far as solicitors of this Court on its Original Side are concerned, service of Writs can be made upon them if they agree to accept service or if they have entered appearance on behalf of a defendant and filed their warrant. (Chapter 8 B. 25, High Court Rules O. S. Re Denver United Breweries (1890) 63 A.L. T. 96). 27. (iv) Service by affixation. The most difficult problem arising in the matter of service of process is service by affixation. This mode of service is regulated by B. 17 of Order 5. As has been pointed out before, this Rule has been substantially amended by this High Court and the amended Rule must be strictly followed. Service by affixation can only be made under the following circumstances : (a) Where the defendant is personally found but refuses to sign the acknowledgment. (b) Where the defendant cannot be found personally but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time when the attempt to serve was made. This is fatal. Since Writs can be served on a defendant at his place of residence or at his place of business, it follows that it must be attempted to be served at a time when the defendant was likely to be at his place of residence and/or his place of business. The process-servers who were examined before me said that they went out in the morning and did not find anything unreasonable in trying to serve a limited company at 9 O'clock in the morning. Nor in this particular case did the process-server find it unreasonable to attempt to serve defendant 2 at 1 p. m. at his residence, when of course he was expected to be at his place of business. In Jhabarmull Dudhwalla v. Bhagat Ram Serowgi 51 Cl. W. N. 189, it has been held that to go to a businessman's residence during business hours when ordinarily he is away at his business premises elsewhere, for the purpose of serving Summons upon him and not finding him at his residence on call, and affixing the process on the outer door of his residence, was not good service. 31. (vi). Lastly, we come to the question of serving a firm or a Corporation. 32. As regards a partnership firm, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control of the business or in both capacities. 36. Service on a Corporation is governed by Order 29, E. 2, Civil P. C. It prescribes that subject to any statutory provision the summons in the case of a Corporation (it includes a limited company) may be served : (a) on the Secretary, or on any director, or other principal officer of the Corporation, or (b) by leaving it or sending it by post addressed to the Corporation at the registered office, or if there was no registered office, then at the place where the Corporation carries on business. In the case of foreign companies, the place where the Corporation carried on business meant the principal place of business in the Indian Union Asiatic Steam Navigation Co. Ltd. v. Tribhuwandas & Co. A. I. R. 1928 sind 111. 37. Applying these rules to the facts and circumstances of this case, it is quite clear that the service is not in accordance with law. 38. As regards defendant 2, he was served by affixation, on the third attempt as he could not be found and as the process server could not find any 'authorised employee living in the same mess on his behalf.' This shows complete ignorance of the process server as to how the W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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