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TMI Blog1946 (1) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... e McNair, who heard the application, came to the conclusion that there had been service and he dismissed the application with costs. The Defendant now appeals against the learned Judge's dismissal. As is not uncommon in applications of this kind there are many matters which are in controversy-affirmations by one party and denials by the other. I propose to refer as little as possible to the controversial matters. 2. The Defendant at one time was a partner of a firm named Shyamlal Mohanlal; the nature and the other partners of that partnership need receive no reference. The business address of the partnership was at one time at 176, Cross Street, Calcutta. It would seem, according to a statement of the Defendant in his affidavit, that at the date of the institution of the application, the business address was at No. 89C, Talpukur Road, Belaghata. The Plaintiff's Manib-Gomasta in his affidavit says that this partnership carried on business at one time at No. 137, Cotton Street and there was a board with the name of the firm outside the premises. At No. 137, Cotton Street, Calcutta there was a Company named the Indian Yarn Trading Co., Ltd. of which, the Defendant says, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhakatram Serowgie v. Jhabermull Dudhwalla, which is the cause title of the present suit, acknowledging Messrs. Fox Mondal's letter of the 17th and stating that a suit had been filed and decreed, the clients of Messrs. Fox and Mondal were all along aware of the suit and the decree which had been passed, and the writ of summons had been duly served. On the same day, Messrs. Fox and Mondal replied stating that Jhabermull Dudhwalla, the Defendant, was also one of their clients and that they were forwarding to him a copy of the letter which they had received and asked for a copy of the plaint, the affidavit of service of the writ of summons and decree. No reply was received. On the 21st May, Messrs. Fox and Mondal again wrote stating that their client had instructed them that the writ of summons had not been served and he had no knowledge of the filing of the suit against him or of the decree. Eventually copies of the pleadings and other documents in the suit were obtained and the present application was made. 4. One further matter requires reference. In the affidavit filed by the Plaintiff's Manib Gomasta, in opposition to the application, there are statements that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the summons on the outer door of the house in which the Defendant ordinarily resides. 9. I now turn to the affidavit of service. It is affirmed by Sagarmull Khemka, the Plaintiff's Manib Gomasta and Abdul Rahaman, one of the Sheriff's bailiffs. The substance of their two statements comes to this: On the 13th January, 1945 at 2-30 P. M. and on the 15th January, 1945, at 1-15 P. M. the two deponents went together to No. 192, Chittaranjan Avenue, Calcutta for the purpose of identifying the premises, the portion in which the Defendant resides, to identify the Defendant, and to effect service. On each of those two occasions, they went to the portion on the first floor occupied by the Defendant, outside of which the Manib Gomastha called aloud the Defendant's name, no one came out and, the affidavit continues, that inspite of their best efforts they could not find the Defendant or anybody else authorised or empowered by him to accept service. On the 16th January at about 5 p. M. the same deponents again went to the Defendant's residence and each of them says that inspite of their calling aloud the said Defendant by name nobody came out, whereupon the bailiff's o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s whether the provisions of r. 17, Or. 5 of the Code, as applicable in this Court, were complied with by the Sheriff's officer when he went to the premises to effect service; or whether there was compliance with any other provision of the Code, so that it can be said that the Defendant was served with the writ of summons. Rule 12 of the Code, to my mind, makes it manifest that there must be personal service upon the Defendant when it is practicable. In the ordinary course of justice, the Defendant should be given personal notice whenever it is practicable to do so. The Defendant lives, works and carries on business in Calcutta. It is nowhere suggested that he was trying to avoid service or was hiding from his creditors or from anyone else. It is when personal service is impracticable that other provisions in the Code, dealing with different methods of service, come into operation. There have been a number of decisions upon the provisions, and similar to the provisions, which are now found in rule 17. I propose first to refer to one in this Court at the time when the Code of 1882 was in force. Sec. 80 is the section then concerned. At that time there was no requirement in the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of his judgment he said: In my opinion, the effect of the authorities is that all available steps to effect personal service must be made before resort is had to the provisions of Or. 5, r. 17. It is not enough to attend at the ordinary place of residence or of business or the place where the Defendant personally works for gain, and to conclude that substituted service may be effected merely because at the time when the serving poen attends at such place the Defendant does not happen to be there, and later In my opinion, the serving peon before he can take advantage of the provisions of Or. V, r. 17, must attend at the right place and he must attend at a time when he may reasonably expect that the Defendant will 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 Sir Corner Petheram, C. J., made in 1892 are at least as opportune to-day as they were 32 years ago. 13. The stringency and requirement of the provisions as to service as laid down by sec. 80 of the 1882 Code were recognised in Bhomshetti Jinappashetti v. Uma Bai I. L. R. (1895) Bom. 223. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence. If it is required to find a businessman during those hours the proper and correct place to go to for that purpose is his business premises. The serving officer in this case did not do that; maybe, he omitted to do so by reason of his being told by the Plaintiff's Manib-Gamasta to effect service at the Defendant's residence. In my view, there is no compliance with rule 17 unless the serving officer goes to the Defendant's business premises to find him during business hours or if, he goes to a business man's private residence, he should go there during such hours of the day when ordinarily he would be expected to be found at those premises. In my opinion, there was a failure to comply with the provisions of rules 12 and 17, when the purported service was made upon the Defendant. 15. Even in the absence of service, if the Defendant, otherwise becomes aware of the proceedings, nevertheless he is entitled to avail himself of the provisions of Or. 9, r. 13 of the Code and to have an ex parte decree set aside in the absence of service. This is made perfectly clear by the decision in the case Re: Kassim Ebrahim Saleji v. Johurmull Khemka I. L. R. (1915) Cal. 447 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was contended for the Plaintiff that the Defendant had changed his business: that whereas at one time he had been carrying on business under the name and style of Shyamlal Mohanlal at No. 137, Cotton Street, when the Manib Gomastha of the Plaintiff paid a visit to No. 137, Cotton Street, he found the sign-board of Shyamlal Mohanlal had been changed and he found another sign-board of the Indian Yarn Trading Co., Ltd. The Defendant himself states in his petition, paragraph 9, that the partnership, that is to say, the partnership of Shyamlal Mohanlal, had been dissolved in 1942. There is also considerable controversy in the affidavits as to the precise address at which the Defendant was at different times, or at the material time, carrying on business. Some reliance was placed in the judgment of the learned Judge in the Court of first instance on this aspect of the matter. He observed as follows: In view of the difficulty which the partners themselves found in deciding where they should carry on business it does not seem unnatural that the Plaintiff should have decided that it would be safer to serve the writ at their residence. 24. For my purpose, however, it is, in my view, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant was described as carrying on a joint family business under the name and style of Shyamlal Mohanlal at No. 137, Cotton Street within the aforesaid jurisdiction. Forthly, re-suiting from that and quite irrespective of whether the firm of Shyamlal Mohanlal had been dissolved or not and quite irrespective of whether the Defendant was carrying on the business as a joint family business or otherwise, there was nothing before these two persons serving the writ of summons, which could be taken to lead them to conclude that the Defendant had ceased to operate as a business man. Fifthly, those two persons went on Saturday, Monday and Tuesday, that is, 13th, 15th and 16th January at the hours of 2-30 P. M., 1-15 p. M. and 5 P. M. to serve the writ of summons. They have stated in their affidavit what occurred. I have no reason whatever to dispute the accuracy of the statements in that affidavit. Indeed the argument for the Defendant has proceeded on the assumption that the facts there stated are those which actually occurred. They go to the portion of the premises on the first floor of the building comprising 192, Chittaranjan Avenue. Therefore there is no suggestion that they knocked o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o suggestion has been made that there was any adult male member of the family at these premises, when the process-server went to serve the writ of summons. My learned brother has explained the manner in which r. 17 of Or. 5 for the Calcutta High Court has been amended from r. 17 of the Code of Civil Procedure in force in other High Courts. It will be seen that the rule in force in this High Court is in two parts, The rule provides for service of the writ of summons by affixation of a copy of the summons on the outer door. This, as laid down in the rule, can only be done, either, where the Defendant refuses to sign the acknowledgment as mentioned in the first part, or, in the circumstances mentioned in the second part. With the first part this case is not concerned. To allow it to be done within the second part of the rule several conditions have to exist. Firstly, the Defendant must be absent from his residence at the time when service is sought to be effected on him, secondly, there is no likelihood of his being found thereat within a reasonable time, and thirdly, there must be no agent or other person upon whom service can be made. As I have already mentioned in this case it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of being found there himself and being personally served. Three visits at a time of day, however, when the Defendant is bound to be out as in the present case are proof of nothing. This goes nowhere towards establishing that there is no likelihood of the Defendant being found at the premises within a reasonable time. I do not at all accept any suggestion that three visits at a time of day when there is no likelihood at all of the Defendant being found at the premises is itself sufficient by the mere piling up of the three visits; knowing well that he could not be found there at that hour of the day. To take an obvious illustration:-If the process-server has positive knowledge that the Defendant is not in his residence between the hours of 1 and 2 every day, and supposing there art no servants and no one at those premises who knows the Defendant, it does not advance the process of proof, or the process of establishment of the fact that there is no likelihood of his being found thereat within a reasonable time, if the process-server should go to those premises between those hours 50 times or 1001 times. I have had occasion in a previous case (an unreported case so far as I know ..... X X X X Extracts X X X X X X X X Extracts X X X X
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