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TMI Blog1915 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... en by the plaintiff's Solicitor to the defendant, an application was made to Mr. Justice Imam to set aside the decree on the ground that the writ of summons had not been served upon the defendant. The learned Judge refused to set aside the decree and this is an appeal from his judgment. 2. Now, the service was supported in the first instance upon an affidavit in the usual form, which is to be found at page 15 of the paper-book, in which one Sitaram, who was employed by the plaintiff, and another Ishak, who was in the employ of the Sheriff of Calcutta, swore that they had been to the defendant's house where he ordinarily lived and resided on the 1st, 3rd and -4th day of August, that they could not find him there, that they could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it might be taken as a precedent on other occasions. Inasmuch as I do not consider that what was done in this case was sufficient service, it would not be right for us to say that it was sufficient service, because we are strongly of opinion that the defendant knew of the issue of the writ. In my judgment, where it is a question of substituted service, and the defendant has not been served personally, it is most essential that the requirements of the rules should be strictly observed in all respects. 4. Now, the rules which are material to this matter have already been referred to, and I only intend to refer to them quite shortly. The first is Order V, Rule 12, which says, Wherever it is practicable, service shall be made on the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn the original to the Court...." 6. Now, the question in this case is whether the facts as set out in two or three affidavits which have been referred to by Mr. Bose show that the serving officer used all due and reasonable diligence. In my opinion, it would be dangerous for this Court to hold that the facts set out there show that all due and reasonable diligence was used. One must remember that the first affidavit represented that the serving officer had gone to the defendant's dwelling-house and tried to find him on three separate occasions, that he could not find him or any adult male member of the family and that he then proceeded to call out, outside the house, the name of defendant and then posted a copy of the writ upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erfunctory way." [See Cohen v. Nursing Dass Auddy 19 C. 201.] Now, those are the words used by Chief Justice Sir Comer Petheram when he was dealing with a case where service was attempted to be made on a man at his dwelling-house. I think that remark will apply a fortiori to this case where service was effected in a perfunctory manner, by going to a man's place of business where he carries on business with a partner, and where he may be or may not be on those days. As has been said, it is a very good rule to follow that proper enquiries, and real and substantial effort, and not perfunctory, should be made to find out when and where the defendant is likely to be found. 7. Under these circumstances I think that, although as I have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved. 10. I would like to add that the decision referred to by the Chief Justice [Cohen v. Nursing Bass Auddy 19 C. 201] was followed by Sir Lawrence Jenkins, C.J., and myself in an unreported decision in Appeal from Order No. 75 of 1912, dated the 28th November 1913. Asutosh Mookerjee, J. 11. I am of opinion that the order of Mr. Justice Imam cannot be supported. The question for determination is, whether the appellant, as an applicant who seeks to set aside a decree made ex parte against him, has satisfied the Court, within the meaning of Rule 13, Order IX, of the Code, that the summons in the suit was not duly served upon him. The answer depends upon the true construction of Rules 12 and 17 of Order V, Rule 12 recognizes the fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted was not in fulfilment of the requirements of the Code. In my opinion, the answer must be in the negative. I am not prepared to affirm the proposition that if the plaintiff makes no effort whatever to find the defendant in the place where he ordinarily resides, and not finding him where he carries on business along with others, affixes the summons upon a conspicuous part of the business premises, the requirements of the Code are satisfied: Cohen v. Nursing Dass Auddy 19 C. 201. Indeed, the plaintiff has not proceeded on the theory that it was permissible under the law to serve summons in this manner. He acted on the footing that the defendant actually resided in the premises to which the summons was taken. He now discovers that he was u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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