G. Shanmukhi vs Utakur Venkata-srami Reddi and Another

Subba Rao, C.J.—I have had the advantage of reading the judgment prepared by learned brother Bhimasankaram J. I agree with him.

Bhimasankaram, J.

The Civil Revision Petition has been directed to toe posted before a Full Bench by our learned brother Chandra Reddy J. The question for determination in the case is whether substituted service effected as provided by Order 5, Rule 20, Code of Civil Procedure(CPC), is due service within the meaning of Order 9, Rule 13 of the same Code.

The facts of the case are these: The Petitioner obtained a decree against both the Respondents who are father and son. The father was not personally served with the notice of suit and substituted service was ordered against him. As he did not eventually appear in the suit, there was an ex parte decree passed against him. He applied to the lower Court for setting aside the decree on the ground that he had no knowledge of the suit.

Without recording a definite finding as to whether he had or had not knowledge of the proceedings, the learned District Munsif before whom the petition for setting aside the ex parte decree cam up for hearing, stated that as the service was only substituted service, he could not have been was of the suit and set aside the ex parte decree. The Plaintiff-decree-holder has come up in revision against the said order.

Now, Order 9, Rule 13, so far as it is material f the present purpose, is as follows:

(1) In any case in which a decree is pass ex parte against a Defendant, he may apply to Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not only served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

In this connection the language of Article 164, Limitation Act may also be borne in mind, because it also refers to "due" service.

By a Defendant for an Thirty The date of the decree Order to set aside a decree days or where the sum was not duly

Passed ''Ex Parte served, when the applicant has knowledge of the decree.

The words "duly served", it may be noticed, also occur in Article 169, Limitation Act and Order 41. Rule 21, CPC (CPC), which provides for the setting aside of ex parte appellate decrees. The question now is, in cases where only substituted service has been effected on him in terms of Order 5, Rule 20, can it be said that the Defendant has been "duly served" within the meaning of the above rules or articles?

A conflict of views on this point between some earlier and later decisions of the Madras High Court beginning with the year 1926 was noticed in a recent ruling of that court reported in S.J. Bashyam Achari Vs. G. Parthasarathi, (A). In that case, the learned Judges while indicating the divergence of opinion proceeded on the basis that the later decisions took the correct view. We are here called upon to consider which line of decisions has to be preferred.

Order 5 deals with the issue of summons to the Defendant in order to apprise him of the institution of the suit against him so that he might appear and answer the claim. Rule 9 of that Order prescribes direct service on the Defendant or upon an agent empowered to accept service on his behalf. Sub-rule (3) thereof provides alternatively for service by registered post prepaid for acknowledgment. Rule 12 directs that wherever it is practicable, service shall be made on the Defendant in person, unless he has an agent empowered to accept service, in which case service on such agent would be sufficient.

Rules 13 and 14 enact that summons may be served on a manager or agent of the Defendant who carries on any business or work for him, if the suit relates to such business or work, or an agent of the Defendant in charge of any immovable property, if the suit seeks a relief respecting it. In a case where, the Defendant is absent and has no agent empowered to accept service, service may also be made on any adult male member of the family of the Defendant who is residing with him, as provided by Rule 15.

The summons is either to be delivered or tendered to the Defendant, his agent or an adult member of his family. Where they refuse to sign an acknowledgment of service, the procedure to be followed is prescribed by Rule 17, while Rule 18 describes the procedure to be adopted when the summons has been actually served on any one of them. Then follows Rule 20 which provides for substituted service in these terms:

20(1). Where the Court is satisfied that there is reason to believe that the Defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house (if any) in which the Defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

(2). Service substituted by order of the Court shall be as effectual as if it had been made on the Defendant personally.

It is manifest that these several modes of service attempt to reconcile the need for bringing home to the Defendant knowledge of the suit with the practical necessity of proceeding as early as possible with its trial. Where these rules of service are observed, there would generally be good reason for supposing that the Defendant became aware of the institution of the suit, though it does not necessarily follow that he actually did.

It is possible that even in a case of personal service or service upon an agent, etc., there may be mistaken identity, and the person served may not be the Defendant or his agent. The Defendant when he comes to know of the suit or the decree passed therein may in such a case approach the Court for relief under Order 9, Rule 13, Code of CPC (CPC), and point out that he has not been ''duly served.

It is seen that in the case of substituted service, there are two conditions prescribed before it can be resorted to, viz., that the Court must be satisfied either (1) that there is reason to believe that the Defendant is keeping out of the way for the purpose of avoiding service, or (2) that for any other reason the summons cannot be served in the ordinary way. The satisfaction of the Court in each of these cases is brought about by representations of the Plaintiff usually made by an affidavit. If, of course, the Defendant has been deliberately keeping out of the way and substituted service is ordered in such a case, it certainly would be ''due'' service.

A party cannot close his eyes and complain that he is unable to see. But, if on the other hand the Defendant is not really keeping out of the way at all and the Court is only induced to believe that he is, by the one-sided representation of the Plaintiff, it is clear that the service that is then substituted .cannot be regarded as "due" service. Therefore when the question arises as to whether in a particular case, substituted service obtained from the Court is or is not "due" service, it will have to be determined by ascertaining whether the representations made to the Court by the Plaintiff were not true, that is to say, whether the Defendant could be presumed in the circumstances, to have or had actual knowledge.

Of course, substituted service will not be directed unless the Court is satisfied as to the existence of one or the other conditions specified In the rule. But a mere note upon the record to that effect is not conclusive against the Defendant though in the absence of any other practicable alternative the Court must proceed upon the looting, for the time being, that the service is as effectual as personal service.

This effectuality is only for the purpose of enabling the Court to go on with the suit. But, its-effectuality against the Defendant depends solely on whether he really avoided service or whether as a matter of fact he came to know of the suit otherwise. These facts will have to be determined by the Court to which application is made to Bet aside an ex parte decree.

We may now refer to some of the cases brought to our notice not only of the Madras High Court but of other High Courts. One of the earliest is that reported in K.B. Narasimha Chettiar Vs. K.P. Balakrishna Chetty, (B). In that case, Madhavan Nair J. (as he then was) sitting as a single Judge recorded the view that where the formalities of Rule 20 have been complied with, the Defendant must be deemed to have been duly served for the purpose of Article 164, despite the fact that the decree in fact did not come to his knowledge.

Another single Judge of the Madras High Court, Srinivasa Aiyangar J. in Vitta Venkatachalam and Another Vs. Sivapuram Subbayya, (C) rejected the view. The learned Judge formulates his opinion thus:

But when it comes to a question of substituted service, it seems to me that the very expression ''substituted service'' clearly and conclusively indicates that it is not due service, the service that is due to the Defendant or that is due according to the provisions of law for the purpose of service. For the purpose of Article 164, substituted service therefore could not possibly be regarded as due service. I do not at all see why, adopting such a construction as Madhavan Nair J. appears to have done. Article 164 should be whittled down in the manner it would undoubtedly be.

I do not for my part believe that the Legislature really intended in enacting Col. 3 of Article 164 to confine the scope of the article only to cases where the actual service directed by the Court is shown not to have been effected at all in that manner. We may also have regard to what is obviously the object of the Legislature in providing that in cases where the summons is not duly served, the time begins to run from the date on which the applicant has knowledge of the decree.

The implication seems to be clear that in cases where the summons is duly served the presumption may well be that he has knowledge of the decree, or at any rate if he does not get knowledge of the decree, it was ascribable only to some fault on his part or on the part of those near about him who ought to have known better. I am therefore unable to agree with the view taken by the District Munsif that substituted service of summons within the meaning of the Procedure Code is due service within the meaning of Article 164.

In a later case reported in Shariba Beeby v. Abdul Salam, ILR 51 Mad 860: (AIR 1928 Mad 815) (D) a Division Bench consisting of Phillips and Madhava Nair JJ., preferred the view expressed in K.B. Narasimha Chettiar Vs. K.P. Balakrishna Chetty, (B) to that expressed by Srinivasa Aiyangar J. in Vitta Venkatachalam and Another Vs. Sivapuram Subbayya, (C) and observed that the latter ignored Clause (2) of Rule 20 of Order 5 which declares that substituted service should be deemed to be as effectual as personal service. They seem to hold that prima facie substituted service is "due" service, though even then apparently it would be open to the Defendant to show that the formalities (of such service) have not been properly observed and that he was fraudulently kept out of the knowledge of the proceedings because, as a matter of fact, they remanded the case before them for fresh disposal by the lower Court after determining whether the allegations made by the Defendant to that effect were or were not true.

The question fell to be considered again in Gyanammal Vs. Abdul Hussain Sahib, (E) of which the report is to be found in Gyanammal Vs. Abdul Hussain Sahib, (E). Reilly J. starts the discussion by enunciating "the cardinal principle of our administration of civil justice that no decree shall be made against a party behind his back." Then he goes on to observe at page 226 (of ILR Mad): (at p. 615 of AIR) as follows:

Obviously the best method of service is upon the Defendant himself. But, even if the summons is returned to the Court as having been served on the Defendant himself, and he does not appear at the trial of the suit, he is not necessarily concluded. We cannot in all cases say that, because the return is that the summons has been served personally, it has been duly served and so he cannot get an ex parte decree against him set aside.

It is open to a Defendant in such circumstances to show that the summons in the suit was not really served upon him but upon somebody else, or that what was served upon him was not the summons in the suit, or that it did not give the correct date or some other essential information about the suit, or that it was not accompanied by a copy of the plaint in the suit concerned, so that, although in a sense he was personally served, he was not provided with the knowledge of the claim against him, which is the object of the service. All these and similar allegations are open to him, even if there is a record that he has been personally served.

If after due diligence the process-server is not able to serve a Defendant personally, either on himself or his agent or his manager or a member of his family, the rules provide that he may affix the summons to the door of the house in which the Defendant ordinarily resides or carries on business; and, when that is done and a return to that effect is made, the Court after taking an affidavit from the process-server may hold that that is due service and proceed with the case. There it will be seen there is a reasonable inference which the Court may draw that the Defendant really had knowledge of the suit derived from the notice which was fixed on his door.

But in that case the rule is that the Court before proceeding with the case must specifically hold that such service is due service. Obviously the reason of that is that, if the Court is not satisfied that such affixture has been made effectively, a fresh attempt at service must be made. But, although the Court uses in its finding in such cases the words ''duly served'' according to the rule, that does not present the Defendant from coming in afterwards and showing that the summons was not duly served by affixture because that affixture really did not bring home to him the knowledge of the claim against him.

The order made by the Judge that the service by affixture has been due service, which enables the suit to go on, is an ex parte order, and it cannot be suggested that the Defendant in those circumstances cannot come in and show that he never had knowledge of the claim against him, that the inference that it was brought to his knowledge by the affixture is for some reason not a sound inference.

He then, proceeds to discuss substituted service and puts his view thus:

That is obviously the least satisfactory of all methods of service, only to be used by the Court as a last resort when other means are unavailable ...... Inferior as that method of service is, to the other methods of service, it will be seen, it too provides some slight basis, for an inference that the summons really comes to the knowledge of the Defendant before the case is heard......

The inference is often not at all a strong one. But Plaintiffs cannot be kept waiting for their relief indefinitely because the Defendants cannot be found, and therefore some such method as substituted service must be provided as a last resort to toe used by the Court when other means of service are unavailable.

Rule 20(2) of Order 5 of the Code provides that substituted service by order of the Court shall be as effectual as if it had been made on the Defendant personally. That means, as I understand it, that the proceedings can go on after the date fixed in the summons so served. But, does it mean, as Mr. Ramakrishna Ayyar for Defendant 2 would have us say, that it is necessarily due service, which can never be contested by the Defendant at any later date? There is nothing in the rule about its being due service.

The word ''due'' does not appear in Rule 20 at all. Such service is said to be effectual as if it had been on the Defendant personally, not more effectual. As I have mentioned, even if the Defendant is served personally, it is open to him to come to the Court and show that that war; not really due service because it did not really give him knowledge of the claim against him. If a Defendant who is served personally can do that, how can we say that a Defendant who is served only by inference through substituted service is shut out for ever from '' showing that he had no knowledge of the claim against him?

The learned Judge then notices the above decisions of Madhavan Nair and Srinivasa Ayyangar JJ. Referring thereafter to the decision in Shariba Beeby v. Abdul Salem (D), he remarks thus:

The learned Judges in that case stated that they differed from Srinivasa Ayangar J.''s view in the case which I have quoted; but they did not deal with his argument drawn from the reference to "knowledge'' in Article 164, Limitation Act. And, if 1 may say so with very great respect, the matter was not fully discussed by them.

With great respect I venture to differ from their view that substituted service must always be deemed to be due service within the meaning of Articles 164 and 169, Limitation Act or Rule 13 of Order 9 or Rule 21 of Order 41 of the Code. I see nothing in the rules to prevent a Defendant against whom an ex parte decree has been made from showing, if he can, that he has not been duly served in the sense that knowledge of his opponent''s claim has been brought home to him, even though the formalities of substituted service have been carried through.

As I understand the matter, due service within the meaning of Article 164 and 169, Limitation Act and Orders 9 & 41 of the Code is not service which is technically and formally correct as a basis for proceeding ex parte, but service which has really been effective, which has achieved the object of service by bringing the claim against him to the knowledge of the Defendant or Respondent. Substituted service may be such service; but we know that often it is not so. Nevertheless we are asked to say that, when substituted service is carried out in the prescribed form, it must invariably be held to be due service.

The reasoning in this decision has since been adopted by several High Courts vide Ram Bharose Vs. Ganga Singh (F); Kedar Mull Agarwalla and Another Vs. Wazifunnessa and Another, (G) and chettiyar Firm v. Aga M. Bheerazee, ATO 1939 Rang 436 (H). I may, in particular, refer to ILR 54 All 154: Ram Bharose Vs. Ganga Singh (F) which is a decision of the Full Bench of that Court. Mukerji J., who wrote the leading judgment expressed his view at p. 158 (of ILR All): (at pp. 729-730 of AIR) on this question as follows:

The rule that substituted service is to be taken as effectual as personal service only means that the Court hearing the case may proceed with the suit as if the summons had been personally served on the Defendant.

The result is that, in my opinion, whether there has been ''due service'' or not is to be considered by the Court to which an application has been made" for setting aside an ex parte decree, having regard to all the circumstances of the case as described above. If the conclusion is that there was due service, then, if the application has not come within thirty days of the decree, he is barred by time. If the conclusion is that there was ho due service, the limitation would be computed from the date of the applicant''s knowledge of the decree. The mere fact that a substituted service has been ordered is immaterial by itself.

He points out that when an order for substituted service is made by a Court on the representation of the Plaintiff only one side is present before the Court and it acts on the representation of one party, and that therefore it should obviously be I open to the Defendant when he appears, to show that the method employed was not calculated to effect the purpose which the Court had in view, namely informing the Defendant of the institution of the suit.

To the same effect is the decision in Kedar Mull Agarwalla and Another Vs. Wazifunnessa and Another, (G). It was ruled therein by a Division Bench of the Calcutta High Court that in a case where substituted service has been ordered, the Defendants are not precluded from afterwards showing that in fact there was no service on them at all and that the order for substituted service was procured on a misrepresentation of the facts. They extract the observations of Reilly J. in Gyanammal v. Abdul Hussain Sahib (E) with approval.

The same view was taken in AIR 1939 Rang 436 (H). The learned Judges held in that case that the rule that substituted service is to be taken as effectual as personal service only means that the Court hearing the case may proceed with the suit as if the summons had been personally served on the Defendant. They observed that the basis of the order on which the Court orders substituted service to issue is either that the Defendant is deliberately keeping out of the way to avoid process or that it cannot be served in the ordinary way through no fault of the Plaintiff.

In the latter case, the Defendant may always show that the proceedings did net come to his knowledge. In the former case, the order of the Court is only relevant to the question whether the Defendant was in a position to have knowledge of the proceedings, for obviously if a Defendant keeps out of the way to avoid service, of process on him, ......he cannot afterwards be heard to argue that he had no knowledge of the proceedings.

They also concur with the observations of Reilly J. above extracted.

As already indicated, I find myself in agreement with the views of Reilly J. as expressed in Gyanammal v. Abdul Hussain Sahib (E). In my opinion, substituted service may or may not be ''due'' service according to the circumstances of the case. It is open to the Defendant to establish that he never avoided service and that, in any case, notice of the claim had not been brought home to him.

In the present case, as the learned District Munsiff seems to have proceeded upon the footing that merely because it was substituted service, it could not have been due service, the matter should, in my opinion, go back to him for fresh disposal after ascertaining the facts in the light of the observations made above. I would direct that the costs of the case should abide and follow the result.

Satyanarayan Raju, J.

I agree.