M.C. Rajagopalachari vs P.K. Subramaniam

Curgenven, J.—This petition raises the question of the efficacy of substituted service in relation to Article 164, Limitation Act. The plaintiff

twice took out summons to the defendant and failed to secure service. An application for substituted service was then granted, there was no

appearance, and an ex parte decree was passed. The petition is to revise an order dismissing an application by the defendant to set that decree

aside. It is argued (a) that, even where substituted service has been validly effected, the summons has not been ""duly served"" within the meaning of

Article 164, and (b) that in the present case, such service was not validly effected.

The learned Judge of the Small Cause Court has negatived the former proposition on the authority of three reported cases of this Court,

Doraiswami Iyer v. Balasundaram Iyer A.I.R.1927Mad.507, Narasimha Chettiar v. Balakrishna Chetty A.I.R.1927Mad.487 and Shariba Beeby

v. Abdul Salam A.I.R.1928 Mad.815, the last of which, at least, is clear authority for the view that substituted service ""is as effectual as personal

service"" and is hence ""due service"" within Article 164, Limitation Act. The learned Judges, Phillips and Madhavan Nair, JJ., dissented from a

decision to the contrary by Srinivasa Iyengar, J., in Venkatachallam v. Subbayya A.I.R.1928 Mad.655. Since then, and indeed since the lower

Court''s order was passed, Reilly and Anantakrishna Ayyar, JJ., in Gynammal v. Abdul Hussain Sahib A.I.R.1931Mad.813, have taken the view,

that substituted service is only effective for this purpose, if it has succeeded in bringing the claim to the knowledge of the defendant. It is

unnecessary for me to discuss the merits of this position, because, when the order now under reference was passed, the balances of judical opinion

was markedly against it, so that it is impossible to revise the order on the ground that it was based on an erroneous view of the law may add that in

Krishna Padayachi Vs. Vinayakaswamiar, , Venkatasubba Rao, J., also has agreed upon this point with Phillips and Madhavan Nair, JJ.

The second point relates to the requirements to be satisfied before it should be held that substituted service has been validly effected. I may say

here that no exception is taken in this case to the procedure adopted in order to effect service; it is only contended that the Court was not justified

in issuing the order for such service, and even upon this point, the argument has not sufficiently distinguished, in my view, between what the Court

was justified in doing upon the materials at the time available and what it might have done, had evidence subsequently recorded been before it.

Order 5, Rule 20, Civil P. C., invests the Court with jurisdiction to order substituted service where it

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.

If, at the time the Court is so satisfied, I doubt whether the service can be invalidated by showing that its belief was erroneous. In dealing in

revision with an appellate order, which overstepped the due limit and applied its own judgment to the circumstances, Wallace, J., in Doraiswami

Iyer v. Balasundaram Iyer A.I.R.1927Mad.507, said that the appellate Court

had only to see whether, it was issued according to law, and whether the District Munsif was satisfied that the conditions required by Order 5,

Rule 20, were fulfilled; if so, then, the order was legally made.

And again,

if the trial Court was judicially satisfied that these conditions were present, it appears to me not open to the lower appellate Court to hold in effect

that the trial Court was not so satisfied or ought not to be have been so satisfied.

If this test is to be adopted, there are certainly no grounds for holding that substituted service was not validly effected. Two attempts to serve the

defendant had failed, and the plaintiff filed an affidavit alleging that he was keeping out of the way. Other decisions however, of which the above-

cited judgment of Venkatasubba Rao, J., in Krishna Padayachi Vs. Vinayakaswamiar, and Ram Kishan v. Mula, A. I. R.1924Lah.191, are

examples, take a rather wider view, and hold that, if it be shown that the order for substituted service although properly passed was improperly

obtained, it will follow that due service was not effected. In order to show this, it must be established that the applicant for substituted service did

not believe, or had no reason to believe, in his own representations, and not that those representations were in fact not well founded. To go to the

latter length would be to lose sight altogether of the terms of Order 5, Rule 20, Now the two summonses were to the defendant at Vellala Street,

Purasawalkam: in the first no house number was given, in the second the number was given as 47. The justification for giving this address was this:

that a notice of demand before suit was so directed to the defendant, and although it was delivered to him in a street of Madras and not at any

house, he signed the delivery book containing his name and the address as Vellala Street, though the number was entered as 27 instead of 47. The

discrepancy in the number would, I think, only be material, if the defendant had contended that he lived in Vellala Street but at No. 27 and not at

No. 47. As matters stood, he presumably saw in the delivery book a wholly erroneous address and refrained from correcting it. Not only so, but

when the plaintiff''s clerk was examined in the application to set aside the decree, no question was put to him in cross-examination as to the

discrepancy in the numbers or to the reason why the defendant was described as living in Vellala Street, or generally, in order to establish the

imputation of lack of bona fides. I think that the only conclusion is that not only are there no grounds for holding that the plaintiff intentionally misled

the Court but that on the contrary, the defendant misled the plaintiff by not correcting what he knew was a wrong address. The civil revision

petition is dismissed with costs.