Mrs. Emkamma Bai vs Ravikumar

Srinivasan, J.—This appeal is against the order of the VII Assistant Judge, City Civil Court, Madras dismissing an application to set aside

the ex-parte decree. The application was filed by the defendants 3 and 4. It is now stated that the 4th defendant is dead and the 3rd defendant,

being her daughter, is the only legal representative and she is only the appellant before me.

In the affidavit filed in support of the petition in the Court below, it was stated that there was no service of summons on defendants 3 and 4, and

they had no knowledge of the proceedings. It was also alleged that huge fraud had been committed by the summons having been returned as if they

were served on the petitioners.

In the counter-affidavit filed by the plaintiffs, it was clearly pointed out that the summons had been duly served on the son of the first petitioner,

i.e., the son of the appellant in this Court and the service was sufficient in the eye of law. The appellant herein did not file any reply affidavit. Nor

did she take steps to give evidence in the proceedings.

The Court below held that the summons had been duly served on the son of the appellant herein and sufficient cause was not made out for the

absence of the appellant on the date of trial. Consequently, the application was dismissed.

I sent for the records from the court be low and I found that the summons issued by the Court bear the endorsement, Reed copy of the

summons only"". Though the summons addressed to defendant 3 as well as defendant 4 bear the same endorsement, below that there is an

endorsement ''Reed''. Below that, there is a signature and the date is written as ''14-11-84''. The name of the person, who signed the endorsement

is not clear. The second part of his name is clearly readable as ''Sah''. The first part of his name is not clear.

In the affidavit filed by the process-server along with the summons addressed to the 4th defendant Muniamma Bai, it is stated that the summons

was served on the defendant''s brother, i.e., Muniamma Bai''s brother. It was also stated that he was not personally known to the process-server.

In the other affidavit filed along with the summons addressed to the 3rd defendant Emkamma Bai, it was stated that it was served on the

defendant''s son, i.e., Emkamma Bai''s son. Muniamma Bai is the mother of Emkamma Bai. Hence Muniamma Bai''s brother cannot be the son of

Emkamma Bai.

It is now argued by learned Counsel for the respondents that it is a mistake committed by the Process server. But that mistake was very costly.

The process server ought to have ascertained the exact relationship of the person, who received the summons and mentioned it correctly in the

affidavit filed by him. If it is a mistake in the affidavit, the person who would be affected is the plaintiff and nobody else.

Apart from that, the service of summons is not in accordance with the provisions of Rule 15 of Order V of the Code of Civil Procedure, The

said rule reads:

Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be affected on him at his

residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service

of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.

It is argued by learned Counsel for the respondents that the affidavit was in the Form prescribed in the old C.P.C. before amendment in 1976

and that has been utilised by the process-server. The City Civil Court or the process-server has no business to use the same. Even if such printed

forms are used, they must make necessary corrections as required by the new rules. There is no averment in the affidavit that the process server

was convinced that there was no likelihood of the defendants 3 and 4 being found at the residence within a reasonable time. Under Rule 15, it is an

essential pro-condition that the process-server should ascertain whether there was likelihood of the defendants 3 and 4 being found in the

residence within a reasonable time. If the defendants 3 and 4 could be found at their residence within a reasonable time, then the process-server

should wait or to go to the residence of the defendants once again on another day and try to serve on them at their residence personally. In case

where the defendants may not be found at their residence within a reasonable time, the process-server could serve the summons on any adult

member of the family, whether male or female, residing with such defendant. As the process-server has not ascertained such fact in the present

case and has not made any reference in the affidavit to the factum of his ascertaining as to whether there is no likelihood of the defendants being

available for service at their residence within a reasonable time, the service of summons on a person, who has described himself as the 4th

defendant''s brother and 3rd defendant''s son is not a valid service. It cannot be countenanced in law as a service within the meaning of Order 5

Rule 15, C.P.C. Further copies of the plaint have not been served on the defendants.

In view of the fact that the defendants 3 and 4 have not been served in the suit, the ex-parte decree passed against them is unsustainable. The

defendants 3 and 4 cannot be taken to task for not being present on the date of trial. As such, the decree deserves to be set aside. Hence, the

appeal is allowed. The order of the VII Assistant Judge, City Civil Court, Madras in I.A. No. 8176 of 1990 is set aside and the said I.A. is

allowed and the ex-parte decree passed in O.S. No. 4162 of 1984 dated 21-12-1984 is set aside as against defendants 3 and 4. There will be no

order as to costs.