Abraham Pillai vs Donald Smith and Another

Sankaran Nair, J.—The petitioner applied to set aside an ex parte decree obtained against him on the ground that he was not duly served

with the summons. It appears from the reports of the Village Munsif and the process-server that they went to the house of the defendant at

Anumanthampatti and were told by his wife that he had gone to Peermade coffee garden and that she did not know when he would return. There

was no male member to receive the summons. The process-server thereupon affixed a copy of the summons on the outer wall of the house of the

defendant.

There was no further attempt made to serve the summons on the defendant personally. The suit was heard ex parte and a decree passed against

him, which is now sought to be set aside.

I am of opinion that the decree must be set aside.

Whenever it may be practicable, the service of summons shall be made by delivering or tendering a copy to the defendant in person (Sections

73 and 75 of the Code of Civil Procedure), and it is only when reasonable grounds exist for believing that the defendant is keeping out of the way

to avoid service or that for other reasons it cannot be served in the ordinary way that substituted service should be ordered (Section 82 of the

Code of Civil Procedure). Temporary absence by itself will not justify a resort to this mode (Subramia Pillai v. Subramania Ayyar ILR Mad. 419

and if there were reasons for believing that the defendant''s absence was not temporary, then an attempt should have been made to effect service

on the defendant in person in Travancore u/s 89 or 90 of the Code of Civil Procedure. In this case service u/s 89 could have been made as the

defendant received at Peermade a registered letter addressed to him by the plaintiffs, after the decree was passed. See Sakina v. Gauri Sahai ILR

All. 303.

In Sankaralinga Mudali v. Ratnasabhapati Mudali ILR Mad. 325, it was not known where the defendant was nor whether his absence was only

temporary and it was accordingly held that there was no prospect of serving him personally within a reasonable time. That case does not therefore

apply.

The Judge has therefore acted with material irregularity in holding the affixing of the summons to be proper service Jagannath Brakhbhau v. J.E.

Sassoon ILR 18 Bom. 606 and his order is therefore reversed, the ex parte decree set aside and he is directed to restore the suit to his file and

proceed with it in accordance with law.

The costs in this Court will be provided for in the final decree.