Kejabai vs Dayaram

Shivdayal, J.—This is an application for re-hearing of Civil Revision No. 95 of 1961 (Kejabai v. Dayaram), which I heard exparte(sic) and decided on July 10 1961.

The non-applicant Dayaram made this application on September 11, 1961, on the ground that he was not present in the village when a notice issued by this Court was reported to have been affixed on his residence, which service was reported by the Civil Judge Second Class. Mahasamund, as not good. In spite of this report, the office of this Court thought that the non-applicant had been served and the case was reported as ripe for hearing.

On September 21, 1961, I ordered issue of notice to Kejabai. No one appeared on her behalf to oppose this petition.

I find that the petition is well founded. When notice was sent to Dayaram for hearing of the revision, he was reported to have gone out of station just two days before the process server reached his house. There was no suspicion of his evading service. All the same it was affixed on his residence. The Civil Judge, Mahasamund, remarked that the service was not good. It appears that the office of this Court overlooked these reports regarding service.

The Provisions contained in Order V, Rule 17, of the Code of Civil Procedure, regarding affixture of notice on the outer door of the Defendants residence do not apply to mere temporary absence of the Defendant''s from his residence. In such a case, it is the duty of the process server to find out when the Defendant is likely to return and to await his arrival. I can do not better than to repeat the observations of Comer Petharam, C.J., in Cohen v. Narsinghdass ILR 19 Cal. 201.

It is true that you may go to a man''s house and not find him, but that is not attempting to find him You should go to his house, make enquiries, and if necessary follow him: You should make enquiries to find out when he is likely to be at home, and go to the house at a time when he can be found. Before service like this can be effected it must be shown that proper effects have been made to, find out when and where the Defendant is likely to be found out 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.

This petition is, therefore, allowed. I set aside the order whereby the Civil Revision No 95 of 1961 (Kejabai v. Dayarm(sic)) was allowed. Let a date be fixed in the office for a fresh hearing of that revision.